Wegman v. Fendelman
| Decision Date | 15 March 1960 |
| Docket Number | No. 30249,30249 |
| Citation | 333 S.W.2d 290 |
| Parties | Ray A. WEGMAN, Jr., and Mary B. Wegman, Plaintiffs, v. Jack FENDELMAN and Eugene Portman, Trustee, Defendants and Third-Party Plaintiffs-Appellants (Carl H. Oberle and Maryland Casualty Company, a corporation, Third-Party Defendants-Respondents). |
| Court | Missouri Court of Appeals |
Eugene Portman, St. Louis, Mo., for defendants and third party plaintiffs-appellants.
Philip M. Sestric, Richard M. Stout, St. Louis, Mo., for plaintiffs.
Paxton H. Ackerman, Ackerman, Schiller & Lake, Clayton, for third party defendants-respondents.
BRADY, Commissioner.
This is an appeal from an order denying defendants' motion to correct entry of an order dismissing their third-party petition. The parties will be referred to as they were in the trial court, except the third-party defendants-respondents, who will be referred to as Oberle and Maryland.
On January 25, 1957, plaintiffs filed a petition to cancel a certain deed of trust securing a note in the sum of $4,500, which sum represented money borrowed by plaintiffs from the defendant, Fendelman, and for equitable relief. As grounds for such action, the plaintiffs alleged that the said deed of trust was not signed by plaintiffs nor acknowledged by them before a notary public, and that the signatures on the deed of trust were forgeries. On February 14, 1957, defendants filed a motion for leave to file a third-party plaintiffs' petition, answer and interplea directed against the third-party defendants. The motion for leave to file the third-party petition recites that it is made in conformity with Section 507.080 RSMo 1949, V.A.M.S. The third-party petition alleges that the individual third-party defendant, Oberle, was the notary public who wrongfully and illegally affixed the acknowledgment on the deed of trust, and that the corporate third-party defendant was surety on Oberle's official bond, guaranteeing that he would faithfully perform the duties of his office, and praying judgment in the sum of $7,500, and that Oberle and Maryland be summoned and required to answer the third-party petition. The answer and interplea filed by defendants admitted the existence of a deed of trust, and alleged that defendants did not have sufficient information to form a belief as to the truth or falsity of the allegations of the petition as to whether the deed of trust was a forgery. On the same day that the motion for leave was filed, a memorandum was filed, stating that defendants' motion was sustained. The memorandum was not signed by the court, and is as follows, omitting the caption:
'By leave of Court first had and obtained defendants' motion to file a Third Party Plaintiffs Petition and Third Party Plaintiffs Petition filed. Upon ex parte application defendants motion to join Carl Oberle and Maryland Casualty Company, a corp., sustained. Summons ordered to issue with copy of said Third Party Plaintiffs Petition Attached against said third Party defendants. Answer and Interplea filed.
'(Signed) Eugene Portman
'Attorney for Defendants
'MA 1-6992.
'Filed
'Div. Feb 14 1957 Two
'Raymond O. Douglas
'Circuit Clerk.'
Summons did issue on February 18, 1957, was returned executed on both Oberle and Maryland, and on April 29, 1957, Oberle was granted 20 days additional time in which to plead. On May 20, 1957, Oberle and Maryland filed their motion to dismiss, which was based upon two grounds: first, that the third-party petition failed to state a claim on which relief could be granted against the third-party defendants; and second, that on the same date that this action was filed, an action was also filed in the circuit court of St. Louis City by the same plaintiffs, against the same defendants, arising out of the same transaction; i. e., the allegedly false notarization of this deed of trust by Oberle. On June 14, 1957, after a hearing, the trial court sustained the motion to dismiss, by memorandum which reads:
'Third Party Defendants Motion to Dismiss third party petition sustained.
'Filed
'Div. Jun 14 1957 Two
'Raymond O. Douglas
'Circuit Clerk.'
On the 18th of September of that year, trial was had on plaintiffs' petition, with the result that a decree was entered on that same day which cancelled, set aside, and held for naught the deed of trust.
On the 16th of January, 1958, defendants filed their verified motion to correct the entry of the order of June 14, 1957. The motion alleged that on June 14, 1957, the court entered an order sustaining defendants' motion to dismiss, and requesting that the actual order made by the court on that day, which was alleged to be a denial of defendants' permission for leave to join by a third-party plaintiffs' petition and interplea a claim against Carl H. Oberle and Maryland Casualty Company, a corporation, be entered. The motion further alleged that at the hearing held on June 14, 1957, Paxton H. Ackerman, attorney for Carl H. Oberle and Maryland Casualty Company, a corporation, opposed the joining of his clients in the cause, and the court stated that, although defendants had filed a motion requesting leave to file as third-party plaintiffs, leave was never granted by the court, and that nowhere in the court file is there any signed order granting such leave, and that the court thereby denied defendants the right to join Carl H. Oberle and Maryland Casualty Company, a corporation, as third-party defendants, and that said order is the actual ruling of the court. This motion read, in part, On that same day, this motion was sustained by the trial court, the actual memorandum reading:
'By leave, defendant's Motion to Correct Entry of Order of June 14, 1957, filed and sustained. Clerk ordered to correct entry of June 14, 1957 so as to read as follows: 'Third party defendants' motion to dismiss third party petition sustained, without prejudice.'
'Eugene Portman
'Attorney for Defts.
On January 21, 1958, the third-party defendants filed their motion to quash the order above set out, and as grounds therefor alleged that they were not served with a copy of the motion for a nunc pro tunc order, nor notified of the hearing thereon, that the motion contains erroneous statements of law and fact, and that under Rule 3.25 of the Rules of the Supreme Court, 42 V.A.M.S., and Section 510.150, RSMo 1949, V.A.M.S., the court was without jurisdiction to make such an order, and that such an order was improper. On March 1, 1958, the defendants filed an alternative motion to correct the entry of the order of June 14th, which was served upon third-party defendants' counsel, and notice given them of the hearing on that motion set for March 14, 1958. On that day, the parties appeared by counsel, and the third-party defendants were granted leave to amend their motion to quash, by adding a new paragraph alleging that the making of the nunc pro tunc order ex parte was '* * * without due process of law violative of Article XIV of the Constitution of the United States and of Sec. 10, Article I of the Constitution of the State of Missouri [V.A.M.S.].' Thereupon the Motion to Quash was taken up, heard and submitted to the court, and the following memorandum entered, which is not signed by the trial court:
Carl Oberle and Maryland Casualty Company's Motion to Quash Court's Order of January 16, 1958, called, heard and submitted, and the same is sustained on the ground of failure of defendants to notify Carl H. Oberle and Maryland Casualty Company of defendants application to correct order of June 14, 1957.
'(Signed) Engene Portman
'Attorney for Defts.
'Ackerman, Schiller & Lake
'Atty for Third Party Defts.
'Filed
'Div. Mar 14 1958 Two
'Raymond O. Douglas
'Circuit Clerk.'
Although the alternative motion for a nunc pro tunc order had not been ruled upon, the defendants filed the same motion again on March 18, 1958, and served a copy on the third party defendants. On that same day, leave to file that motion was granted by order reading:
'By leave of court first had and obtained, defendants file their Motion to Correct Entry of Order of June 14, 1957.
'(Signed) Eugene Portman
'Eugene Portman
'Attorney for Defendants
'Suite 1811-611 Olive St.
'St. Louis 1, Mo. MAin 1-6692
'Approved:
Defendants then gave notice to the third party defendants that they would take up this motion on March 21, 1958, and on that day hearing was had upon the motion.
The hearing was very short, the only witness being the attorney of record for the defendants. Before he began his testimony, counsel for the third-party defendants objected to any testimony being received for the reason that the defendants' motion stated that it was a proceeding under section 511.250 RSMo 1949, V.A.M.S., and that relief under that statute can be granted only when the irregularity is patent on the record and that to take evidence would therefore contravene the substance of that section of the statutes. There was no ruling by the trial court upon this objection. Counsel for defendant thereupon stated that he did not rely entirely upon the statute as a basis for his motion, but he also relied upon '* * * the inherent power of the court to do substantial justice.' He thereupon proceeded to give testimony in narrative form. His testimony was that he was the attorney for the defendants and attended a proceeding on June 14, 1957, before the judge now sitting in this hearing, where the question was whether or not defendants would be permitted to join as third-party defendants Oberle and Maryland, as requested by a pleading he had filed requesting such permission. Counsel then gave as his testimony that...
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