Abernathy v. Missouri Pacific Railway Co.

• Court: Missouri Supreme Court
• Writing for the Court: MOZLEY, C.
• Citation: Abernathy v. Missouri Pacific Railway Co., 287 Mo. 30, 228 S.W. 486 (Mo. 1921)
• Decision Date: 09 March 1921
• Parties: WARD ABERNATHY, by JAMES SHEPARD, Curator of Estate of WARD ABERNATHY, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

228 S.W. 486

287 Mo. 30

WARD ABERNATHY, by JAMES SHEPARD, Curator of Estate of WARD ABERNATHY, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 9, 1921

Appeal from Benton Circuit Court. -- Hon. C. A. Calvird, Judge.

Reversed.

J. F Green and C. D. Corum for appellant.

(1) This clearly was a collateral attack on these judgments, as is shown by the following authorities. Johnson v. Realty Co., 167 Mo. 341; State ex rel. v. Merchants & Miners Bank, 213 S.W. 817; 14 Current Law, p. 390; Gunby v. Cooper, 177 Mo.App. 356. (2) The procedure here presented clearly constitutes a collateral attack on these judgments for fraud in the procurement of them and they are invulnerable to attack in this way. State ex rel. v Merchants & Miners Bank, 213 S.W. 818; Lovett v Russell, 138 Mo. 482; Rivard v. Railroad, 257 Mo. 168; Maxwell v. Quinby, 90 Mo.App. 473; Abbington v. Townsend, 271 Mo. 615; State ex rel. v. Ross, 118 Mo. 46; Johnson v. Realty Co., 167 Mo. 339; Morris v. Sadler, 74 Kan. 892; Simpson v. Kimberlin, 12 Kan. 579; Pritchert v. Madern, 31 Kan. 38. (3) The facts alleged in plaintiff's reply are insufficient to justify the setting aside these judgments even in a direct proceeding. If plaintiff had sought, by his petition filed in the District Court of Crawford County, Kansas, to set the judgment rendered by that court aside and had based the right to do so on the averments contained in this reply, such petition would be demurrable. It is well-settled law that before a judgment can be set aside for fraud, even in a direct proceeding instituted for that purpose, that the plaintiff must allege and prove that fraud was practiced in the very act of procurement of the judgment. It will be noticed that the reply in this case does not allege any fact tending to show any fraud in the procurement of the judgments rendered by the Kansas courts, but it is simply based on the alleged ground that fraudulent representations were made to the plaintiff's guardian which induced him to consent to the judgment entered in the probate court and to settle his case for an inadequate amount, and that these representations were made to him by defendant's agents outside of the court room and prior to the rendition of the judgments by the probate court, and, of course, prior to the rendition of the judgment in the District Court of Crawford County, Kansas. These averments would not satisfy the requirements of the law even in a direct proceeding assailing these judgments. Murphy v. De France, 101 Mo. 157; Payne v. O'Shea, 84 Mo. 133; Hamilton v. McLean, 139 Mo. 678; Nichols v. Stevens, 123 Mo. 96; Story on Equity Juris. (11 Ed.) sec. 1582; Railroad v. Mirrieless, 182 Mo. 126; Fears v. Riley, 148 Mo. 49; McDonald v. McDaniel, 242 Mo. 176; Trust Co. v. Stoneware Co., 197 Mo.App. 148; Cantwell v. Johnson, 236 Mo. 600; Wolf v. Brooks, 177 S.W. 337; McGillvray v. Assurance Co., 46 L. R. A. (N. S.) 110; Crouse v. McVickar, 207 N.Y. 213; United States v. Beebe, 180 U.S. 344, 45 L.Ed. 563. (4) The court erred in not giving the judgments of the probate and district courts of Kansas the full faith and credit required by Section 1 of Article IV of the Constitution of the United States. Tootle v. Buckingham, 190 Mo. 196; Lieber v. Lieber, 239 Mo. 29; Railroad v. Deer, 200 U.S. 176; Harris v. Balk, 198 U.S. 215; Lindley v. Railroad, 47 Kan. 432; Morris v. Sadler, 74 Kan. 892; Anthony v. Halderman, 7 Kan. 50; Garner v. State ex rel. Moon, 28 Kan. 790; Pritchard v. Madren, 31 Kan. 38.

C. W. Prince, E. A. Harris, W. S. Jackson, and James N. Berry for respondent.

(1) The so-called release and discharge is void ab initio for the reason that the "journal entry" shows upon its face that the plaintiff was a minor, that a "jury" was "waived" and that judgment was based upon the "agreement" of the parties. The rights of infants can be extinguished only by legal proof; nothing can be waived; the guardian was utterly lacking in power to "waive" the substantial right of trial by jury, and the court was lacking in power to effectuate such waiver. Revely v. Skinner, 33 Mo. 101; McClure v. Frithing, 51 Mo. 109; Le Bourgeoise v. McNamara, 10 Mo.App. 119. (2) An infant is incapable of making an admission which can effect his rights, and for a stronger reason an admission of another person made on behalf of the infant cannot affect his rights. Fink v. Railroad, 161 Mo. App., 314, 143 S.W. 568. (3) A guardian is without power to waive or consent to anything in cases involving rights of minors. Full proof must be made. Revely v. Skinner, 33 Mo. 100; McClure v. Farthing, 51 Mo. 109; Fink v. Railway, 161 Mo.App. 324; Railway Co. v. Lasca, 79 Kan. 311. (4) The discharge proved by defendant was a mere "journal entry" furnished by defendant's counsel and filed in court. It lacked the verity of a judgment and was not signed until ten years after it was filed and then by a man whose judicial powers had terminated many years before, a mere afterthought and makeshift in a vain attempt to validate a worthless document. But in addition to this a judgment is not such until it is rendered, and in Kansas even after rendition, is not complete until the record itself is signed by the judge. 1909 Kan. Gen. Stat. secs. 6008, 6010. (5) But whether it be called a direct or collateral attack to impugn a judgment by an answer or reply our statutes expressly authorize that thing to be done. Sec. 1812, R. S. 1909. (6) Though collateral attack is permissible where the judgment is infected with a jurisdictional flaw, an attack in reply on a release pleaded in the answer is direct and not collateral and a fortiori an attack on a judgment so pleaded is direct and not collateral. Harms v. Casualty Co., 172 Mo.App. 248; Martin v. Turnbaugh, 153 Mo. 172; Wonderly v. Lafayette, 150 Mo. 626; Engler v. Knoblaugh, 131 Mo.App. 481. Fraud which goes to the jurisdiction of a court may be shown in response, when a judgment entered by a court thus lacking jurisdiction, is sought to be enforced. Fraudulently simulating appearance by attorney is such a fraud, and judgments based thereon are open to collateral attack. Palmer v. Bank, 213 S.W. 873; Marx v. Fore, 51 Mo. 74; Eager v. Stover, 59 Mo. 87; Napton v. Leaton, 71 Mo. 358; Hayes v. Merkle, 67 Mo. 57; Hayes v. Merkle, 78 Mo. 383; Hanks v. Hanks, 218 Mo. 673. (8) In Missouri a foreign judgment may be attacked when set up, and the want of jurisdiction and fraudulent simulated appearance may be shown by response. If obtained by fraud and without jurisdiction it is no judgment at all and absolutely void and will be so declared if the fact is made to appear; the defense goes to its very existence. Marx v. Fore, 51 Mo. 74; Palmer v. Bank, 218 S.W. 873. (9) Citizens are not driven to foreign states to protect their rights. If they have a legal right, or are being subjected to a wrong they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction. Marx v. Fore, 51 Mo. 74; Palmer v. Bank, 218 S.W. 873. (10) On objection of the defendant the court excluded the testimony of J. A. Van Houten, clerk of the District Court of Crawford County, Kansas, to the effect that the records and files of the court had been materially and unlawfully altered. The excluded proof is competent for this court to consider, because the respondent may point out errors committed by the trial court against him in order to sustain judgment in his favor. Savings Bank v. Denker, 205 S.W. 208. (11) The inference of authority arising from the words "attorneys for plaintiff" following the words "Curran and Curran" in the proceedings in the district court of Kansas was destroyed by the positive testimony of Burl Abernathy that he had not employed them. The issue thereon thus became ipso facto resolved in plaintiff's favor as a matter of law. Guthrie v. Holmes, 272 Mo. 215; Mockowik v. K. C. Ry. Co., 196 Mo. 550.

MOZLEY, C. Railey and White, CC., concur.

OPINION

MOZLEY, C.

This suit was instituted on the 13th day of February, 1917, in the Circuit Court of Benton County, Missouri, by Ward Abernathy, by the curator of his estate, James J. Shepard. The action was to recover damages for personal injuries sustained by plaintiff by being run over by a car being operated by the Missouri Pacific Railway Company at Cherokee, Kansas. The injury occurred on the 10th day of September, 1905. The petition states a common-law action for negligence, in that defendant negligently and carelessly backed a string of its cars on a side track with such force against a stationary car as to run it against and over plaintiff and so injury him that both of his legs had to be amputated, all of which, it is alleged, was done without the exercise of ordinary care, which, had it been exercised, would have disclosed plaintiff's presence and his situation of imminent peril. Recovery was sought under the humanitarian rule. The petition alleges that plaintiff was a minor, nineteen years of age, when the present action was brought, and that he was seven years of age when the accident happened, -- thus disclosing a lapse of twelve years from the date of the accident to the date of the suit.

Defendant answered by general denial, a plea of contributory negligence that defendant railway was defunct, and plaintiff's father, Burl Abernathy, desiring to make a settlement with defendant, arranged with it to pay plaintiff the sum of $ 250 and costs of a friendly suit, which was to be in full acquittance of all liabilities of defendant in the premises. To this end Burl Abernathy, father of plaintiff, was appointed guardian of plaintiff by the Probate Court of Crawford County, Kansas, the county in which the accident...