Barnett v. Conklin

• Citation: 268 F. 177
• Decision Date: 15 July 1920
• Docket Number: 5509.
• Parties: BARNETT v. CONKLIN.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

268 F. 177

BARNETT v. CONKLIN.

No. 5509.

United States Court of Appeals, Eighth Circuit.

July 15, 1920

Rehearing Denied October 25, 1920.

J. G L. Harvey, of Kansas City, Mo. (James A. Reed, of Kansas City, Mo., on the brief), for appellant.

Leslie J. Lyons, of Kansas City, Mo. (Hiram W. Currey, of Joplin Mo., on the brief), for appellee.

Before HOOK and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

This is an appeal from an order made by the court below March 22 1919, denying the petition of appellant, filed January 9, 1919, which prayed that appellee be enjoined from taking any proceedings to satisfy a judgment rendered by said court on October 3, 1918, for the sum of $167,225.88, in an action wherein appellee was plaintiff and Porto Rico Mining Company, Barnett Mining Company, J. W. Ground, and appellant were defendants. A motion is made to dismiss the appeal, for the reason that the order denying the petition of plaintiff was not a final order and involved the exercise of discretion.

A word in regard to prior proceedings. An appeal was taken to this court from the judgment rendered October 3, 1918, on March 22, 1919. On the argument of said appeal at the September, 1919, term of this court, it was sought by counsel for appellants, against the objection of counsel for appellee, to have the court review the action of the trial court in making the order now sought to be reviewed on this appeal. After the appeal from the judgment had been argued and the case submitted, the present appeal was taken, and a stipulation by counsel was filed in this court, wherein counsel agreed that the court might consider the present appeal in connection with the appeal from the judgment. This court being of the opinion that the order of March 22, 1919, could not be reviewed on the appeal from the judgment alone, and not wishing to take jurisdiction of a case argued before it was appealed, let the present appeal follow the usual course.

The proceeding which resulted in the order appealed from was in no true sense simply a motion to quash an execution involving the exercise of discretion. The proceeding was equivalent and took the place of a proceeding in equity to enjoin the enforcement of the judgment for the reason that it had been satisfied. The prayer of the petition did ask that the execution then outstanding be quashed; but that was merely incidental to the general relief, which was that the enforcement of the judgment should be enjoined. It was not a matter involving the discretion of the trial court, but a matter in regard to which appellant was entitled to the judgment of the court upon the facts pleaded. The denial of the petition by the trial court finally determined, so far as that court was concerned, the rights of appellant, which were substantial rights, not involving the mere regularity of the execution. In so deciding we have no intention to avoid the force and effect of Boyle v. Zacharie, 6 Pet. 648, 8 L.Ed. 532, Evans v. Gee, 14 Pet. 1, 10 L.Ed. 327, Loeber v. Schroeder, 149 U.S. 580, 13 Sup.Ct. 934, 37 L.Ed. 856, and McCargo v. Chapman, 20 How. 555, 15 L.Ed. 1021; or the cases of Noojin v. U.S., 164 F. 692, 90 C.C.A. 513, and Carroll et al. v. Davidson, 152 F. 424, 81 C.C.A. 566.

Boyle v. Zacharie was a writ of error to revise the decision of the Circuit Court in refusing to quash a writ of venditioni exponas issued for the sale of the ship, General Smith, which was seized upon a fieri facias issued on a judgment against Boyle. Counsel for Boyle made a motion to quash the venditioni exponas, upon the ground, among others, that an appeal had been taken from the judgment, and an injunction and bond given in pursuance thereof, which it was claimed acted as a supersedeas. The provisions of Acts Md. 1799, c. 79, and Acts Md. 1723, c. 8, were also relied upon. It thus appears that the motion to quash merely attacked the regularity of the issuance of the execution and did not attack the integrity in any way of the judgment. It was decided that the denial of the motion to quash was not a final judgment; one of the reasons given being that the same court that issued the injunction, issued the execution, and therefore had control of both writs, and in its discretion could determine which should stand.

In Evans v. Gee a judgment had been rendered against Evans by the Circuit Court at the May term, 1836. No execution, so far as the record showed, had been issued until March 16, 1838, when one was taken out, bearing teste the second Monday of October, 1837, returnable the second Monday of April, 1838. The execution was levied on sundry slaves, and a bond given for their delivery. The bond recited that the execution in virtue of which the levy was made bore teste of the May term, 1836. One of the sons of Thomas Evans made an affidavit stating that his father died on September 12, 1837, and on this affidavit a motion to quash the execution and delivery bond was founded. The motion was refused, but the reason therefor does not appear. The Supreme Court decided that the reason was immaterial, as the refusal to quash the execution was not a final judgment. It therefore appears from the report of this case that the motion to quash was founded upon an irregularity in the issuance of the execution. The point made against the execution was that it was issued against a dead man.

In Loeber v. Schroeder, supra, the Supreme Court said:

'The motion to quash the fi. fa. in this case on the grounds that the order of the Court of Appeals, which directed it to be issued, was void for the reasons assigned, stood upon no better footing than a petition for rehearing would have done, and suggested federal questions for the first time, which, if they existed at all, should have been set up and interposed when the decree of the Court of Appeals was rendered on January 28, 1892.'

Of course the ruling on a motion for rehearing or new trial is addressed to the discretion of the court, and not reviewable at all in the federal courts.

In McCargo v. Chapman, supra, a motion to quash an execution issued therein was made upon two grounds:

'(1) Because the same issued more than seven years after a prior execution. (2) Because the same issued more than seven years after the return of the last preceding execution.' It was decided by the Supreme Court in this case that the order quashing the execution was not such a judgment as could be reviewed by writ of error.

Carroll et al. v. Davidson, 152 F. 424, 81 C.C.A. 566, was a case in admiralty, where the court denied a motion to set aside a decree previously entered. This, of course, was not a final decision. Noojin v. U.S., supra, simply followed the general rule that a mere motion to quash an execution is not a final judgment.

We have no doubt but that the order in this case was final as to the matters alleged in the petition, and was appealable. The action in which the judgment in favor of appellee was rendered was an action brought by him against appellant and the other defendants for fraud and deceit in the sale of certain mining property situated in Jasper county, Mo. The court, after a trial of the cause, adjudged that the contract of sale should be rescinded, canceled, and set aside. It also adjudged the title of the property to be in the defendants, and rendered a money judgment against them for the amount of money paid for the property in the sum above stated as damages. On the 11th day of March, 1919, the following compromise agreement between J. W. Ground, one of the defendants in the original action, and appellee, was filed in the court below. This agreement, in words and figures following, was the basis upon which appellant rested his prayer for relief in the present proceeding:

'Whereas, Roland R. Conklin, the above-named plaintiff, did on or about October 3, 1918, recover a judgment in the above-entitled cause for $167,225.88, and costs of suit, against the above-named defendants, and each of them; and

'Whereas, J. W. Ground, one of the above-named defendants, desires to settle, compromise, and adjust the above-mentioned judgment, in so far as same affects him, by the payment of a portion thereof; and

'Whereas, Roland R. Conklin, the above-named plaintiff, is willing and has agreed to accept the amount hereinafter mentioned as a partial payment on said judgment:

'Now, therefore, in consideration of the payment by J. W. Ground to Roland R. Conklin of the sum of $25,000 cash in hand, the receipt of which is hereby acknowledged, and the execution and delivery by said J. W. Ground of his promissory note, payable to the order of Roland R. Conklin on or before thirty (30) days after date, with interest at six per cent. (6%) per annum from date, and his two other like promissory notes, for $25,000 each, due and payable on or before six and twelve months, respectively, after date, and each bearing interest at the rate of six per cent. (6%) per annum from date, the payment of the last two mentioned notes to be secured by the assignment and delivery to Roland R. Conklin, as collateral to said notes, of $200,000 par value of the stock of the Joplin-Pittsburg Railway Company, it is agreed as follows:

'First. That said Roland R. Conklin does hereby acknowledge payment by said J. W. Ground of the sum of $100,000 on said judgment, and discharges and releases all lands, tenements, chattels, goods, wares, merchandise, and property of every kind and description now owned by said J. W. Ground, or which may be hereafter acquired by him, from any and all liens and effects of said judgment, and shall not pursue the said J. W. Ground individually or as a stockholder in the Barnett Mining Company or Porto Rico Mining Company further as to the

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