Young v. Pressgrove, No. 39625.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGantt
Citation195 S.W.2d 516
PartiesSTEPHEN YOUNG and FRED W. SCHLOTTMANN, Trustees for HARRY II. GROVE, and STEPHEN YOUNG and FRED W. SCHLOTTMANN, Individually, Appellants, v. ALBERT W. PRESSGROVE and MYRTLE MAE PRESSGROVE, His Wife.
Decision Date10 June 1946
Docket NumberNo. 39625.
195 S.W.2d 516
STEPHEN YOUNG and FRED W. SCHLOTTMANN, Trustees for HARRY II. GROVE, and STEPHEN YOUNG and FRED W. SCHLOTTMANN, Individually, Appellants,
v.
ALBERT W. PRESSGROVE and MYRTLE MAE PRESSGROVE, His Wife.
No. 39625.
Supreme Court of Missouri.
Division One, June 10, 1946.
Rehearing Denied, July 8, 1946.

[195 S.W.2d 517]

Appeal from Circuit Court of City of St. Louis.Hon. William L. Mason, Judge.

AFFIRMED.

J.L. London for Stephen Young and Fred W. Schlottmann, Rassieur, Kammerer & Rassieur for Jessie A. Mant. Administratrix of Mary Parker, Deceased, and Walther, Hecker & Walther for Fred W. Schlottmann.

(1) The court had no authority or jurisdiction to permit defendants Pressgrove to file a cross bill to cancel and set aside the trust indenture. Such a cross bill engrafted a new cause of action upon the cause of action sued on by the trustees and was a separate and distinct cause of action not germane to the issues raised by the cause of action set forth in the petition of the plaintiff trustees. Davis v. Austin, 156 S.W. (2d) 903, 348 Mo. 1094; Monticello Bldg. Corp. v. Monticello Inv. Co., 52 S.W. (2d) 545, 330 Mo. 1128. (2) H.H. Grove was not an intervenor. Cases cited supra. (3) Under the said Missouri law even an intervenor could not set up a separate controversy; it had to be done by an original bill. Davis v. Austin, supra; Monticello Bldg. Corp. v. Monticello Inv. Co., supra. (4) An action could not be maintained jointly against defendants unless there was joint liability. 1 Houts, p. 20; Salisbury v. Salisbury, 274 Mo. 180, 202 S.W. 529; Addison v. Dent County, etc., Bank, 205 Mo. App. 622, 226 S.W. 322. (5) The defendants Albert W. and Myrtle Mae Pressgrove could not bring an original proceeding to attack the trust instrument, therefore they could not do so by way of a cross bill. McPherson v. Meek, 30 Mo. 345; Davis v. Austin, supra. (6) Sec. 972, R.S. 1939, authorizing bringing in new parties only authorized the court to order then to be brought in by an amendment of the petition, or by a supplemental petition and a new summons. Repealed Laws 1943, p. 353, effective Jan. 1, 1945. (7) If this court should find that the court below had jurisdiction to entertain the cross bills and appoint a guardian ad litem, then the guardian ad litem, as an officer of the court, would have the usual authority to stipulate by and with the consent of the court, especially since the court ordered the plaintiffs to deposit the property in court in accordance with the stipulation, in which plaintiffs challenged the court's jurisdiction. Nagel v. Schilling. 14 Mo. App. 576; Ryan v. Philadelphia, etc., Co., 189 Fed. 253. (8) The term of court had passed and Judge Mason had no jurisdiction to set aside the order of Judge Williams. Therefore the court erred in setting aside the order of Judge Williams and the stipulation. State ex rel. Lentz v. Fort, 178 Mo. 518; Buchholz v. Manzella, 158 S.W. (2d) 200; Jende v. Simms, 166 S.W. 1048; State v. Randazzo, 300 S.W. 755. (9) Grove, being the sole beneficiary of the trust, had a right to and did revoke the trust on September 9, 1943, and the court erred in thereafter cancelling same. Stephens v. Moore, 249 S.W. 601. (10) The allowance of fees and expenses to Tyree C. Derrick was improper because: His services were in behalf of the defendants Pressgrove, whose interests were adverse to those of Grove and his estate. The right of a lawyer to recover fees either in law or in equity is dependent upon the right of his client to such fees. If the client is not entitled to recover such fees, no allowance can be made directly to the attorney. Thatcher v. St. Louis, 343 Mo. 597, 122 S.W. (2d) 915; Schmidt v. Ore Mining Co., 28 Ore. 9, 40 Pac. 406; 6 C.J.S., pp. 1096, 1097; Wallace v. Fiske, 80 F. (2d) 897; Women's Christian Assn. v. Kansas City, 147 Mo. 103. (11) The allowance of fees to Lloyd E. Boas, was improper. The court never authorized him to act as attorney, nor was any order appointing him as attorney ever entered. (12) He had no authority to appoint himself attorney for himself as guardian ad litem. (13) In Missouri a guardian ad litem cannot appoint himself as attorney. Gamble v. Gibson, 59 Mo. 585.

Karl E. Holderle, Jr., for Tyree C. Derrick, Administrator of the Estate of Harry H. Grove, Deceased, and Tyree C. Derrick for Albert W. Pressgrove and Myrtle Pressgrove, His Wife, et al.

(1) Equity has original jurisdiction of suits involving the determination of the validity of trusts and suits to quiet title. Richards v. N.W. Coal & Mining Co., 221 Mo. 149, 119 S.W. 953. (2) Plaintiffs-appellants must prevail on the strength of their own title and not on the weakness of defendants-respondents' title. Cullen v. Johnson, 325 Mo. 253, 29 S.W. (2d) 39; Wheeler v. Reynolds Land Co., 193 Mo. 279, 91 S.W. 1050. (3) The Pressgroves could have brought an action originally to quiet title to the property in themselves. Sec. 1684, R.S. 1939; Richards v. N.W. Coal & Mining Co., 221 Mo. 149, 119 S.W. 953; Meyer v. Wise, 133 S.W. (2d) 321; Canty v. Halpin, 294 Mo. 96, 242 S.W. 94. (4) An answer and cross bill can be set up in a quiet title to attack the trust instrument because the plaintiffs-appellants claimed the trust as their source of title. White v. Kentling, 345 Mo. 526, 134 S.W. (2d) 39; Clark v. Heckerman, 346 Mo. 458, 142 S.W. (2d) 35; Lortz v. Rose, 346 Mo. 1212, 145 S.W. (2d) 385. (5) Once a court of equity acquires jurisdiction it will grant complete relief. The court will not declare the trust void as to one piece of property and good as to the balance. Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W. (2d) 611; Rains v. Moulder, 338 Mo. 275, 90 S.W. (2d) 81; White v. Hughes, 88 S.W. (2d) 268. (6) All parties interested in the cause of action should be before the court. Davis v. Austin, 348 Mo. 1094, 156 S.W. (2d) 903. (7) Under a general prayer for relief, an equity court can grant complete relief within the scope of the pleadings and the evidence. Rains v. Moulder, 338 Mo. 275, 90 S.W. (2d) 81; Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W. (2d) 611; Eckhardt v. Bock, 159 S.W. (2d) 395; Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W. (2d) 289. (8) A guardian can not waive any rights of his ward. Campbell v. Campbell, 350 Mo. 169, 165 S.W. (2d) 851; Kennard v. Wiggins, 349 Mo. 283, 160 S.W. (2d) 706. (9) If the court had jurisdiction and the decree is sustained the act of the trial court in setting its order aside is no concern of the appellants. (10) The decree is for the right party; the error, if any, is harmless and will not cause a reversal. Summers v. People's Elevator Co., 136 S.W. (2d) 81; Chambers v. Metropolitan Life Ins. Co., 235 Mo. App. 884, 138 S.W. (2d) 29. (11) The trust was void...

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7 practice notes
  • City of St. Joseph v. Hankinson, No. 45803
    • United States
    • Missouri Supreme Court
    • March 10, 1958
    ...in true intervention the intervenor may generally do so (39 Am.Jur., Parties, Sec. 79, pp. 950-953; Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516), but he may not, by a purported intervention, lug in a different and extraneous cause of action. Pine Lawn Bank & Trust Co. v. City of Pine L......
  • Bernheimer v. First Nat. Bank of Kansas City, No. 40443
    • United States
    • Missouri Supreme Court
    • December 12, 1949
    ...Sec. 1033, p. 669. Lang v. Mississippi Valley Trust Co. (Mo.Div. 2) Mo.Sup., 223 S.W.2d 404; Young v. Pressgrove, 355 Mo. 204, 210(3), 195 S.W.2d 516, 519(6); Garrison v. Garrison, 354 Mo. 62, 73(4), 188 S.W.2d 644, 649(6); Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 458(7), 154 S.W......
  • German Evangelical St. Marcus Congregation of St. Louis v. Archambault, No. 51701
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1966
    ...Cir., 186 F.2d 473, 481(7, 8). Appellant cites in addition to Leggett v. Missouri State Life Ins. Co., Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516, Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726, St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578, Tracy v. Mar......
  • State v. Wilcox, No. 21274.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1949
    ...v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545; Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516, and State ex rel, Duggan v. Kirkwood, Mo. Sup., 208 S.W.2d 257, 2 A.L.R.2d After a careful examination of the record in the instant case, we ......
  • Request a trial to view additional results
7 cases
  • City of St. Joseph v. Hankinson, No. 45803
    • United States
    • Missouri Supreme Court
    • March 10, 1958
    ...in true intervention the intervenor may generally do so (39 Am.Jur., Parties, Sec. 79, pp. 950-953; Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516), but he may not, by a purported intervention, lug in a different and extraneous cause of action. Pine Lawn Bank & Trust Co. v. City of Pi......
  • Bernheimer v. First Nat. Bank of Kansas City, No. 40443
    • United States
    • Missouri Supreme Court
    • December 12, 1949
    ...Sec. 1033, p. 669. Lang v. Mississippi Valley Trust Co. (Mo.Div. 2) Mo.Sup., 223 S.W.2d 404; Young v. Pressgrove, 355 Mo. 204, 210(3), 195 S.W.2d 516, 519(6); Garrison v. Garrison, 354 Mo. 62, 73(4), 188 S.W.2d 644, 649(6); Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 458(7), 154 S.W......
  • German Evangelical St. Marcus Congregation of St. Louis v. Archambault, No. 51701
    • United States
    • United States State Supreme Court of Missouri
    • July 11, 1966
    ...Cir., 186 F.2d 473, 481(7, 8). Appellant cites in addition to Leggett v. Missouri State Life Ins. Co., Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516, Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726, St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578, Tracy v. Mar......
  • State v. Wilcox, No. 21274.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1949
    ...v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545; Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516, and State ex rel, Duggan v. Kirkwood, Mo. Sup., 208 S.W.2d 257, 2 A.L.R.2d After a careful examination of the record in the instant case, we ......
  • Request a trial to view additional results

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