Barrett v. Stoddard County

• Decision Date: 09 October 1917
• Docket Number: No. 19878.,19878.
• Parties: BARRETT et al. v. STODDARD COUNTY et al.
• Court: Missouri Supreme Court

197 S.W. 914

272 Mo. 129

BARRETT et al. v. STODDARD COUNTY et al.

No. 19878.

Supreme Court of Missouri. Division No. 2.

October 9, 1917.

Error to Circuit Court, Howell County; W. N. Evans, Judge.

Suit by John A. Barrett and others against Stoddard County and others. To review the record of entry of judgment in compliance with the mandate of the Springfield Court of Appeals, plaintiffs bring error. Writ quashed.

Thomas F. Lane, of Cape Girardeau, and J. L. Fort, of Dexter, for plaintiffs in error Houck, Houck, Carter, Miller, Norman, Grant, Hall, La Rue, and Biggs. Giboney Houck, of Cape Girardeau, for plaintiff in error City Bank of Bloomfield. Mozley & Woody and Wammack & Welborn, all of Bloomfield, for defendants in error.

WALKER, J.

This case is here upon a writ of error issued June 21, 1916. The purpose of the writ is to secure a review of the record and proceedings in a certain case theretofore pending in the circuit court of Howell county in which a judgment had been entered in compliance with a mandate of the Springfield Court of Appeals. A chronological résumé of all the facts nearly and remotely connected with this case is presented. While much of this is extraneous, and cannot be considered in determining the matter at issue, its statement will afford an opportunity for a better understanding of the case than can otherwise be obtained.

A temporary injunction was granted at the instance of plaintiffs by the circuit court of Stoddard county in July, 1907, restraining the treasurer of that county from depositing its funds in the Bank of Essex, which had theretofore been designated as the county depository, and directing that such funds be deposited in the City Bank of Bloomfield. An injunction bond was given upon the granting of the temporary writ. A change of venue was then taken to Howell county by defendants, where, upon a trial in February, 1909, a judgment was rendered for defendants, and as a consequence the writ of injunction was dissolved. Defendants thereupon filed a motion for damages on the injunction bond, and before its determination plaintiffs appealed from the ruling of the circuit court on the merits to the Supreme Court, where the judgment of the circuit court of Howell county was affirmed. Thereafter the motion to assess damages on the injunction bond was continued from time to time until December, 1914, when it was tried before a jury, and defendants' damages fixed at $10,000, and after a remittitur a judgment was rendered by the court for $7,000. An appeal therefrom was granted plaintiffs to the Springfield Court of Appeals, where, after a review of all of the facts, the judgment of the trial court was, on February 16, 1916, affirmed (183 S. W. 644), and it was ordered that the cause be remanded to the circuit court of Howell county, and that it enter a judgment for the sum of $7,000 as of the date of the overruling of plaintiffs' motion for a new trial therein. Plaintiffs thereupon filed motions for a rehearing and to transfer the cause to the Supreme Court, both of which were by the Court of Appeals overruled March 11, 1916, and a mandate in conformity with its judgment was transmitted to the circuit court of Howell county. On April 7, 1916, all the parties being present, the circuit court of Howell county, in compliance with the mandate of the Springfield Court of Appeals, entered judgment in favor of the Bank of Essex and against the City Bank of Bloomfield and the sureties on its injunction bond for the sum of $7,000. An affidavit for an appeal to the Supreme Court from this judgment was filed by the plaintiffs, and an appeal was granted to the Springfield Court of Appeals May 28, 1916. Within the time granted plaintiffs filed their bill of exceptions in said court, and on June 16, 1916, dismissed their appeal therein and sued out a writ of error to the Supreme Court. In aid of this writ, not only the record of the proceedings relative to the entry of the judgment by the circuit court in compliance with the mandate of the Court of Appeals is here submitted, but also the record of the proceedings of a former trial of this case, in which there was a judgment for defendants, and upon appeal to the Court of Appeals the same was affirmed, followed by a mandate to the circuit court as above stated.

The course pursued by the plaintiffs in error in the preparation of this abstract is not only anomalous, but unauthorized. The parties and the issues in the case tried in the circuit court and affirmed upon appeal in the Court of Appeals being the same as in the instant case, the matters determined upon that appeal must be regarded as having been finally determined, and they cannot be galvanized into life as undecided issues by incorporating them into the record in the case under consideration; in other words, they are res adjudicata. Cape Girardeau, etc., Ry. Co. v. So. Ill. & Mo. Bridge Co., 215 Mo. 286, 114 S. W. 1084; Meriwether v. Publishers, 224 Mo. 617, 123 S. W. 1100; Benton v. St....