Custer v. Kroeger , 313 Mo. 130 ( 1926 )

On February 16, 1923, the above-named plaintiff filed in the Circuit Court of Lewis County, an action against the above-named defendant, the legal effect of which will hereafter be stated. On March 19, 1923, defendant filed a demurrer to the petition upon the ground that it failed to state facts sufficient to constitute a cause of action. On April 17, 1923, the trial court sustained said demurrer and granted plaintiff leave to file an amended petition within sixty days from said date. On June 16, 1923, plaintiff filed his amended petition, which in substance states the following facts:

That he is, and at all the times mentioned herein was, a resident of Missouri, and the owner in fee simple of the following described real estate situated in Elkhart County, Indiana, to-wit: The northwest quarter of the southeast quarter containing forty acres; also the southwest quarter of the northeast quarter, containing forty acres; and the north half of the southeast quarter of the northeast quarter, containing twenty acres; all in section thirteen, township thirty-eight north, of range seven east; that on February 9, 1916, plaintiff, as such owner, executed and delivered to defendant a warranty mortgage on said land to secure the payment of a promissory note for $2,500, due two years after date; that it was provided in said mortgage, that upon the failure of plaintiff to pay said note when due, defendant might cause said mortgage to be foreclosed upon said land and have said land sold to satisfy said note, interest and costs of the foreclosure proceeding; that during December, 1917, and January, 1918, he took steps to procure a loan from third parties for the purpose of raising sufficient funds with which to pay off said note to defendant and satisfy said mortgage; that plaintiff sought to procure such loan by giving a promissory note to such party or parties as he should procure the loan from, and by giving a mortgage or deed of trust on above-described land to secure the payment of such note, and to pay off the existing note and mortgage held by defendant and to substitute such new mortgage or deed of trust, for the note and mortgage held by defendant; that plaintiff had no money of his own to pay off defendant's note and mortgage, and it was necessary for him to procure said loan from third parties, to pay defendant's note and mortgage, by giving a new mortgage on said land, all of which defendant well knew; that he (plaintiff) had and owned an abstract of title to said land, showing the condition of his title therein; that said abstract of title was temporarily in the possession of defendant, plaintiff having let him have it at the time of giving said note and mortgage; that in order to procure the above loan sought by him to pay defendant's debt, it became necessary for him to make use of said abstract and to exhibit it to the prospective lender or lenders for examination in order to satisfy them as to plaintiff's title to above land; that said abstract did show plaintiff was the owner in fee simple of said land, without encumbrances or liens, except that of defendant, and that it would afford good security for the prospective loan; that he informed defendant he needed said abstract to procure the loan aforesaid to satisfy defendant's indebtedness, and requested defendant to let him have it for that purpose; that defendant, in compliance with said request, delivered said abstract to plaintiff for the purposes aforesaid; that plaintiff thereupon conferred and negotiated with ____, who were lenders of money, and to whom he had made the application for a loan as aforesaid; that such persons were willing to make such loan of money to him, and agreed to make said loan secured by a mortgage on the land aforesaid, provided they found said land to be free of encumbrances, and the title thereto good upon his executing a mortgage on said land to secure the same; that plaintiff accepted said offer and agreement; that plaintiff's title was satisfactory and said land good security for said loan; that plaintiff agreed and intended to exhibit said abstract to said lenders, or either one of them, which would have shown the land to be good security for such loan; that said loan would have been made to plaintiff by one of said lenders in time to enable plaintiff to pay off defendant's indebtedness before it came due and before the foreclosure proceeding by defendant, and defendant's note and mortgage would then and there have been paid and satisfied; that defendant knew that plaintiff, with said abstract, was seeking said loan to pay him off, and unlawfully schemed to prevent plaintiff from procuring said loan, in order that he might foreclose his mortgage on said land and buy the same in under said foreclosure sale; that on or about January 10, 1918, before plaintiff was through with said abstract for the purpose of procuring said new loan and before plaintiff had exhibited said abstract to above lenders, defendant wrongfully entered plaintiff's office and residence in the town of Durham, Lewis County, Missouri, and by force and arms, against the will and remonstrance of plaintiff, forcibly and violently took said abstract of title away from plaintiff and carried it away with him and thereby deprived plaintiff of the use of same for the purposes aforesaid, notwithstanding he explained to defendant the necessity for his having and using said abstract to procure said loan; that defendant refused to return said abstract to plaintiff or to permit the latter to use the same in procuring said loan, although demand of same was made by plaintiff; that defendant pursued the course aforesaid, in order to buy in said land under a foreclosure proceeding as heretofore mentioned, and that he boasted of having gotten plaintiff in a position where he could get the latter's land; that defendant thereafter brought an action in rem in the Circuit Court of Elkhart County, Indiana, at the May term, 1918, of said court, and on constructive service or notice obtained a decree of foreclosure of said mortgage; that pursuant to said decree on July 13, 1918, said land was sold, and bid in by defendant for the full amount of the judgment and costs, amounting to $3,060.96; that under and pursuant to said sale a deed was made by the sheriff to defendant for said land, conveying to him full title therefor.

It is averred, that after defendant refused to return said abstract to plaintiff as aforesaid, the latter ordered a new abstract of title to said land, but before plaintiff by reasonable diligence could procure the same the offer of a new loan had ceased and plaintiff no longer had the opportunity of procuring a loan from them, and was unable to prevent a foreclosure of defendant's mortgage; that if he had had the abstract he could have procured a loan and paid off defendant's indebtedness; that the actual amount due from plaintiff to defendant on said note, on July 13, 1918, the date of the sheriff's sale, was $2,785.65; that the market value of said land was at least $10,000; that plaintiff's equity in said land at the date of said sale was at least $7,214.35; that plaintiff, by reason of defendant's wrongful acts aforesaid, has incurred extra expense in traveling, attorneys' fees, etc., in the sum of $180; that plaintiff's actual damage is $7,394.35; that he is also entitled, by reason of defendant's conduct, to punitive damages in the sum of $7,500. Wherefore he asks judgment for $7,394.35, as actual damages and for $7,500 as punitive damages, etc.

On September 17, 1923, at the September term, 1923, of the circuit court aforesaid, the defendant filed a demurrer to said amended petition, which, without caption and signature, reads as follows:

"Now comes defendant and demurs to plaintiff's amended petition for the following reasons, to-wit:

"1. Because the amended petition of plaintiff does not state facts sufficient to constitute a cause of action."

On September 18, 1923, said demurrer was sustained, and the following judgment entered, to-wit:

"Defendant's demurrer to plaintiff's amended petition sustained and plaintiff declining to plead further it is adjudged by the court that the cause be dismissed and that defendant go hence hereof without day and have and recover of plaintiff his costs."

An appeal was granted plaintiff to this court and on November 6, 1923, a short form transcript was filed herein.

I. This court will take judicial notice of its own records and of its proceedings in actions formerly pending herein. [Keaton v. Jorndt, 259 Mo. l.c. 189; Meyer v. Goldsmith, 196 S.W. l.c. 746; State ex rel. Jones v. Miller, 221 S.W. l.c. 89; State ex rel. Ponath v. Hamilton, 240 S.W. l.c. 449.]

On turning to the records of this court we find that, on November 11, 1920, there was filed herein, a short form transcript of appeal, numbered 22,687, taken from the Circuit Court of Lewis County, Missouri, presided over by JudgeStare James A. Cooley; that said cause was entitled "DanielDecisis. M. Custer, appellant, v. John Kroeger, respondent;" that the judgment in favor of respondent was affirmed by this Division of the the court on August 28, 1922, in an opinion by Judge DAVID E. BLAIR, which will be found reported in full, under the title of "Custer v. Kroeger," in 243 S.W. at page 770 and following. The parties in the above cause, including the attorneys, were the same as those representing said parties in the present action. The substance of the petition in this case, aside from some additional immaterial averments not found in the former case, are exactly alike in every respect. In other words, it is the same cause of action. We see no reason for departing from the conclusions reached by this court on substantially the same facts in the former case. Aside from what we formerly said, it clearly appears in the present case, as shown by the petition, that on February 9, 1916, plaintiff executed and delivered to defendant a mortgage on the land in controversy to secure a promissory note for $2,500,Abstract due February 9, 1918, with an abstract, showing theof Title: title to said land. The defendant was entitled to holdForcible this abstract until his indebtedness was paid and wasSeizure. under no legal obligation to loan it to plaintiff. The fact that defendant may have recovered the abstract from plaintiff by force, is immaterial in this action. There is no causal connection between the above act of defendant, and the loss of plaintiff's equity by reason of the foreclosure of said mortgage. The reasons assigned by Judge BLAIR for affirming the judgment in the former case apply with equal force to the facts in the present controversy.

II. The record on file here in the former case shows that a demurrer to plaintiff's petition was sustained in the trial court, and that he stood upon said petition and refused to plead further. The action of the trial court in dismissing plaintiff's petition in the former case, under the circumstancesRes aforesaid, had the same force and effect as if theAdjudicata. case had been tried on the merits before the court or jury, and the issues found for defendant. In other words, the judgment thus rendered in the former case becameres adjudicata, as to the matters in issue between said parties. [Garton v. Botts, 73 Mo. l.c. 277-8; Conn. Life Ins. Co. v. Smith, 117 Mo. l.c. 296-7; Johnson v. United Railways, 243 Mo. l.c. 290 and following; Searey v. Searey, 196 Mo. App. l.c. 314-15.]

The facts in the present case, are substantially the same as those stated in the former action. Taking judicial notice of the record in the former case, we hold that the affirmance of the judgment in that cause operated as res adjudicata as to the present action.

III. Every question presented in the petition before us could have been litigated in the former case. The appellant is concluded in this action, not only as to the issues which were tried in the former suit, but in respect to every issue which was within the purview of the pleadings,Issues and was the subject of controversy in said action.Triable. [Donnell v. Wright, 147 Mo. l.c. 646-7; Hamilton v. McClean, 169 Mo. l.c. 73; Spratt v. Early, 199 Mo. 491; Cantwell v. Johnson, 236 Mo. l.c. 603; Leslie v. Carter, 268 Mo. l.c. 428; Case v. Sipes, 280 Mo. l.c. 120 and following, 217 S.W. l.c. 309.]

IV. Viewed from any angle the judgment below was for the right party and is accordingly affirmed. Higbee, C., concurs.