Willett v. Farm Mortgage & Loan Co.

• Decision Date: 26 May 1924
• Docket Number: No. 15079.,15079.
• Citation: 263 S.W. 234
• Parties: WILLETT et al. v. FARM MORTGAGE & LOAN CO.
• Court: Missouri Court of Appeals

263 S.W. 234

WILLETT et al. v. FARM MORTGAGE & LOAN CO.

No. 15079.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Rehearing Denied June 16, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially published."

Action by James D. Willett and another against the Farm Mortgage & Loan Company. From judgment for plaintiffs, defendant appeals. Affirmed.

W. F. Zumbrunn, of Kansas City, for appellant.

Blackmar & Bundschu, of Kansas City, for respondents.

BLAND, J.

This suit, arising in the circuit court of Jackson county, Mo., is upon a judgment rendered in the United States District Court for the Western District of New York, wherein the defendant herein was plaintiff and the plaintiffs herein were defendants. There was a judgment in the Jackson county circuit court in favor of plaintiffs herein in the sum of $2,615.26, and defendant has appealed.

The defenses made by the defendant herein at the trial that are now relied upon by it were, first, that the judgment rendered by the federal court is void for the reason that the term at which the case was tried had expired prior to the rendition of the judgment; and, second, that the judgment is not responsive to the pleadings. The case was tried in the federal court at Canandaigua N. Y., the trial beginning on the 3d day of October, 1921, and closing on the 12th day of that month. The statute of the United States offered in evidence provides that the Canandaigua term should begin on September 13th and that the Lockport term should begin on October 11th and that the Buffalo term should begin on November 8th. The documentary evidence offered in evidence shows that the federal judge made an order on November 12, 1921, directing an entry of judgment. It is therefore claimed that not only the term in which the case was tried had expired, but that the succeeding term had convened and expired before the entry of judgment, and it is contended that the court was powerless to make any order or enter any judgment after the expiration of the term at which the cause was tried. This same point was passed on by the court that entered the judgment (see Farm Mortgage & Loan Co. v. Willett et al. [D. C.] 288 Fed. 570) in an opinion delivered by the judge of that court on the motion of plaintiff therein to vacate the judgment. We are well satisfied with the reasoning given by the judge who wrote that opinion denying the motion to vacate the judgment, although it may not be binding upon us. This point is ruled against defendant.

The second point made requires us to state the nature of the suit in the federal court in which the judgment was rendered. The petition in that suit was introduced in evidence and shows that it sought to recover a total sum of $10,000 of tie defendants therein on three promissory notes' alleged to have been executed by them in favor of one C. II. Swallow as payee, payable at the office of C. H. Swallow & Co., and that these notes had been indorsed in due course, before maturity and for value by said Swallow to the plaintiff, who was then the owner of the same. The answer denied that the notes were indorsed and delivered to plaintiff for value, and denied that plaintiff was the holder of them in due course, and by way of counterclaim the defendants alleged that Swallow and one R. B. Creager of the state of Texas were partners doing business under the name of C. H. Swallow & Co., that prior to the execution of the notes they had entered into a conspiracy with the deliberate design to defraud and swindle various parties, including the defendants; that in pursuance of this design, and prior to obtaining the notes by Swallow, the latter and Creager and plaintiff made to the defendants therein certain misrepresentations as to the value of Texas land and made various other misrepresentations in reference to the land, which are fully set out in detail in the counterclaim; and that all of these misrepresentations were made by them with the intent to deceive and defraud defendants and to enrich themselves; that defendants relied upon said misrepresentations and believed them to be true; that they were thereby induced to make and deliver a contract for the purchase of 105 acres of the Texas land. It was further alleged that in this contract the defendants were to pay upwards of $23,000, and were induced to and did pay to the said Swallow the sum of $1,812.50 and to deliver to said Swallow the notes mentioned in the petition; that the contract aforesaid, was, or purported to be "made by the Alamo Land &...