State ex rel. Schimmer v. Wall, 16109
| Citation | 774 S.W.2d 864 |
| Decision Date | 12 July 1989 |
| Docket Number | No. 16109,16109 |
| Parties | STATE of Missouri ex rel. Leroy SCHIMMER, Relator, v. Honorable Roger WALL, Judge of the Circuit Court of Wright County, Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Donald E. Woody, Kevin M. FitzGerald Taylor, Stafford, Woody, Cowherd & Clithero, Springfield, for relator.
Noble I. Leighton, Mountain Grove, for respondent.
This original proceeding in prohibition arises from Leroy Schimmer's effort to enforce an Iowa judgment in Missouri. The issues confronting us are easier discussed after a recitation of the pertinent facts.
On March 13, 1986, the Iowa District Court for Boone County entered a default judgment in favor of Schimmer and against Danny Jones and David Gleason. The judgment recited, among other things, that due to the negligence of Jones and Gleason, Schimmer suffered damages of $50,000 as a result of damage to his vehicle "and because of lost income and wages as a result of this damage to his vehicle." The judgment awarded Schimmer $50,000 against Jones and Gleason "jointly and severally," together with interest "at the statutory rate from the date of filing until paid in full."
On August 1, 1986, the same Iowa court entered an order setting aside the judgment as to Jones, but leaving it intact as to Gleason.
Schimmer filed a petition in the Circuit Court of Wright County, Missouri, January 7, 1988, praying that the Iowa judgment "be registered in this Court and that the same be made a final personal judgment of this Court under the authority of Supreme Court Rule 74.79." 1
On February 4, 1988, respondent, an associate circuit judge of the Circuit Court of Wright County, entered an "Order for Registration of Foreign Judgment," stating, in pertinent part:
Summons was issued by the Circuit Court of Wright County to Gleason, and was served on him February 7, 1988, in Wright County. Gleason filed nothing in response.
On April 27, 1988, at the instance of Schimmer's lawyer, the Clerk of the Circuit Court of Wright County issued a garnishment to State Farm Mutual Automobile Insurance Company ("State Farm"). Interrogatories to garnishee State Farm, propounded by Schimmer, accompanied the garnishment. The interrogatories asked, among other things, whether State Farm had issued any policy of liability insurance to Gleason that was in force September 12, 1983 (the date of the incident on which the Iowa judgment was based).
On May 26, 1988, State Farm filed a motion to quash the garnishment on sundry grounds, one of which was that the Iowa judgment was entered or issued "by surprise and is void for improper service and shall be set aside pursuant to Rule 74.06(b)." State Farm's motion also averred there was a meritorious defense to Schimmer's cause of action on which the Iowa judgment was based.
State Farm filed answers to Schimmer's interrogatories May 27, 1988, revealing that a policy of insurance issued by it to Gleason was in existence September 12, 1983, "on which payment was current." State Farm denied, however, that the policy afforded coverage for Gleason inasmuch as he had allegedly violated the policy by failing to send State Farm "every notice, petition and summons or legal process received by him concerning the claim or suit as provided and required" by the policy. Additionally, pled State Farm, Gleason failed to cooperate as required by the policy.
On October 6, 1988, lawyers for Schimmer and State Farm presented argument to respondent on State Farm's motion to quash. A "certified file" of the case from the Iowa court was received in evidence "by stipulation."
On November 22, 1988, respondent entered an order regarding the motion to quash. Sixteen days later, on December 8, 1988, respondent made an entry on the docket sheet stating:
"Court on its own Motion, & after consultation and without objection from Counsel, has determined that the language in its order was not precise enough & has amended it by interlineation...."
The amended order, dated December 8, 1988, provided, in pertinent part:
"While Missouri law and Supreme Court rule make it inherent upon the Court to give full faith and credit to another sovereign's judgments, certain strict conditions of notice necessitating due process are required under Missouri law and Rule 74.14.
This Court finds that:
1. Even under Iowa Rules of Civil Procedure, it is doubtful whether proper service was ever obtained against ... Gleason. However, the Iowa Trial Court entertained a Motion to Set Aside the Judgment in favor of ... Schimmer against ... Gleason, and ruled that the original judgment stood. This Court must and does give comity to the Iowa decision, at least to the issue of liability.
....
3. The most disturbing part of the case to this Court is that [Schimmer], in a tractor-trailer truck stop parking lot fender-bender accident in Iowa, pleads for and obtains a judgment against [Gleason] in the sum of Fifty Thousand Dollars ... a sum which the Court notes that approximates the likely maximum allowable insurance available to [Schimmer]. Is this due process? Is this justice? The Court thinks not.
The Court has extensively examined the admitted exhibit/case file from Iowa, and in no portion of it is there any reference that the Iowa trial Court entertained any serious evidence, or for that matter, any evidence whatsoever that [Schimmer] suffered damages in the amount of Fifty Thousand Dollars ($50,000).
Missouri case law and Supreme Court Rule now (and at the time of the filing of [Schimmer's] Petition to Register a Foreign Judgment) allow a Court to enter only an interlocutory Order of Default. Any party may demand a jury trial or bench trial in order for a Court to properly assess damages. Rule 74.05(b).
....
IT IS THEREFORE ORDERED that the Court sustains Defendant Gleason's Motion to Quash ... and that the Court hereby grants [Schimmer's] Request to Register Judgment on liability but refuses to grant [Schimmer's] Request for registering the damage portion of the foreign judgment until or unless an evidentiary hearing is held before this Court as to the assessment of damages, either by jury or trial by Court."
An attentive reader will have noted that respondent's reference to "Defendant Gleason's Motion to Quash" is erroneous, as Gleason (as best we can determine from the record supplied us) filed nothing. The motion to quash, as reported earlier, was filed by State Farm.
On December 9, 1988, respondent made an entry on the docket sheet stating:
"At request of [Schimmer] the Court stays its order of 12-8-88 until 12-30-88 to enable [Schimmer] to seek a special writ because of the Uniqueness of the issues of law presented."
On December 30, 1988, Schimmer filed a petition for writ of prohibition in this Court, averring that respondent, unless barred from doing so, will refuse to register the damages portion of the Iowa judgment and will quash the garnishment. Such action, pled Schimmer, would exceed respondent's jurisdiction in that it would give "comity to only half of the foreign judgment," and would refuse to do so "with respect to the damages portion of said judgment." Schimmer prayed us to prohibit respondent from enforcing his order of December 8, 1988.
We immediately issued an order to respondent barring him from further action in the underlying case, and directing him to show cause by a specified deadline why a preliminary order in prohibition should not be issued.
Suggestions in opposition to Schimmer's petition for writ of prohibition were thereafter filed by State Farm (but not by respondent), and suggestions in response to those of State Farm were subsequently filed by Schimmer.
This Court issued a preliminary order in prohibition commanding respondent to take no further action in the underlying case until further order of this Court, and directing him to file his answer to the petition for writ of prohibition by a specified date. Our order also directed the parties to brief the issue of whether prohibition was a proper remedy, by addressing the question of whether an appeal would lie upon final disposition of the underlying case in the manner proposed by respondent, and, if so, whether such an appeal would be an adequate remedy.
State Farm, identifying itself as "party respondent," filed an answer to the petition for writ of prohibition within the deadline fixed by our preliminary order. Respondent filed no answer. Schimmer, however, registered no protest about State Farm's answer, nor did Schimmer raise any issue about respondent's failure to file one. Schimmer did file a timely brief, and respondent (represented by the lawyer representing State Farm) thereafter filed a timely brief.
As the essential facts are ascertainable from the record and the legal questions are sharply defined, we shall bypass the procedural irregularities in this prohibition proceeding and address the dispositive issues on the merits.
The first issue is whether respondent can lawfully deny the damages portion of the Iowa judgment full faith and credit as he intends to do in his amended order of December 8, 1988. In considering that issue we begin with the well established principle that a judgment of a sister state must be given full faith and credit unless there was (1) lack of jurisdiction over the subject matter, (2) failure to give due notice to the defendant, or (3) fraud in the concoction or procurement of the judgment. In re Veach, 365 Mo. 776, 287 S.W.2d 753, 758-59 (ban...
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