B.F. Goodrich Rubber Co. v. Bennett

• Decision Date: 01 March 1926
• Docket Number: No. 15528.,15528.
• Parties: B.F. GOODRICH RUBBER CO. v. BENNETT et al.
• Court: Missouri Court of Appeals

281 S.W. 75

B.F. GOODRICH RUBBER CO. v. BENNETT et al.

No. 15528.

Kansas City Court of Appeals. Missouri.

March 1, 1926.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Suit by the B. F. Goodrich Rubber Company against W. N. Bennett and another. Judgment for plaintiff was assigned to R. S. Robertson, who thereafter died. A motion to compel Eugenia C. Robertson, executrix of the estate of R. S. Robertson, to satisfy the judgment of record, was sustained, and the executrix appeals. Affirmed.

Lamm & Lamm and Bohling & Bohling, all of Sedalia, for appellant.

Paul Barnett, of Sedalia, for respondent.

ARNOLD, J.

This is an appeal from the action of the trial court in sustaining a motion to compel the executrix of the estate of R. S. Robertson to satisfy a judgment of record.

On February 10, 1922, the B. P. Goodrich Rubber Company secured a judgment for $1,765 against one W. N. Bennett in the circuit court of Pettis county, Mo. This judgment was assigned on. April 13, 1922, by the Goodrich Company to R. S. Robertson. On September 9, 1923, Mr. Robertson died, and his estate passed into the hands of his widow, the executrix thereof. Subsequent to the death of Robertson and prior to the filing of the motion by W. N. Bennett, defendant herein, demand was made on the executrix to satisfy said judgment, and said demand was refused. The judgment secured by the rubber company became a lien upon the land of Bennett; said land being afterwards sold to Q. A. Morgan, subject to the lien.

Further facts as set forth in the motion are that on or about February 10, 1922, the rubber company entered into a written contract with said Morgan and R. S. Robertson, whereby it was agreed that the Goodrich Rubber Company should assign said judgment to Morgan and Robertson, and that Morgan, as principal, and Robertson, as surety, should execute to said Goodrich Rubber Company a promissory note due in six months at 7 per cent. per annum. Pursuant to such written agreement, the said note was so executed and delivered, and, upon Morgan's request, the said judgment was assigned to Robertson as a protection to him as indorser of the note. On August 11, 1922, said Q. A. Morgan paid said note in full; Robertson paying no part thereof. Thereafter W. N. Bennett entered into a written contract with said Morgan, whereby all claims, liabilities, judgments, and other indebtedness owing by Bennett to Morgan were settled, including the Goodrich judgment, and including also the costs of said suit which were paid by Morgan. There is of record an assignment showing that the said judgment was the property of Robertson, but there is not shown of record any release of the judgment by Robertson, or any one else.

As stated, R. S. Robertson died in September, 1923, and, on the 13th day of that month, Eugenia C. Robertson was appointed executrix of his last will and testament. By her said appointment all the right, title, and interest in and to the judgment in question that R. S. Robertson might have had, by operation of law, passed into the hands of said executrix.

On September 11, 1924, and prior to the filing of the motion herein, demand was made upon said Eugenia C. Robertson, executrix, that she enter satisfaction of said judgment upon the records of the court, which demand was refused. A hearing was had on the motion at which testimony was heard and the motion was sustained; the order prayed being entered accordingly. A motion for a new trial was unavailing and the executrix has appealed.

Defendant attacks the sufficiency of the record and by motion asks dismissal of the appeal. In this connection, it is pointed out that there is no record proper before us, and by this is meant the record proper in the suit of the Goodrich Rubber Co. v. Bennett, the original case in which the judgment for $1,765 was secured. It is argued that the recital of the motion in this case is a mere excresence upon the record and that, since a motion is not a pleading, it follows that none of the pleadings in this case has been incorporated in the record proper.

It is true that in the record proper herein none of the pleadings in the original suit are incorporated.:t is the rule that this court must see to it that a judgment was rendered upon proper pleadings, but we hold that such a rule does not apply herein; there being no controversy as to the proper rendition of the original judgment. The only question involved in this appeal is that of the ruling of the court on the motion to satisfy the judgment. Our rule 15 requires that the appellant in his printed abstract of the record shall set forth so much thereof as is necessary to a full understanding of all the questions presented to us for decision.

The first ground set out in the motion to dismiss the appeal is that the pleadings in the original case are not set out. The judgment sought to be satisfied is not questioned by any of the parties to this record, but is conceded by all to be valid, binding, and regular. The only pleading considered by the court below upon which this appeal is based is the motion to satisfy of record the original judgment.

It is further charged in the motion to dismiss the appeal that no process upon appellant is set out. Appellant does not question the court's jurisdiction over her in the proceedings, and in these circumstances we think the record not defective in this respect.

Further, it is charged that the record proper herein fails to show any entry of appearance by appellant waiving process. From the record, however, we have no difficulty in learning that the appellant was present at the hearing. It has been held (Shuff v. City, [Mo. App.] 257 S. W. loc. cit. 847) that our rule 12, requiring the summons and return to be set out, applies only to the clerk of the trial court in the making of transcripts in the long form.

As covering all points of appellant's objection to the record, our view of the case is tersely recited in Douglas v. Orr, 58 Mo. 573, as follows:

"Respondents' counsel make the point in their brief that there is no appeal here. A motion was filed at the last term to strike this case from the docket for that reason; but, on suggestion of diminution of record, a certiorari was issued, to which return has been made, and the record now here contains an entry in the bill of exceptions that an affidavit for an appeal was filed and an appeal granted. This entry should appear in what is termed `the record proper,' but all portions of the record are of equal dignity here, and we cannot turn the appellant out of court on this objection. The pleadings and the judgment in this case also appear in the bill of exceptions, and not elsewhere. All this is informal and improper, but we do not think it would justify us in refusing to pass upon the merits of the controversy."

To compel the satisfaction of a judgment that has been paid is a statutory proceeding (section 1577, a S. 1919) and may be instituted by petition or motion. Defendant chose to proceed under the latter and the record proper herein sets out the motion in full, together with...