Board of Regents for Southwest Missouri State University v. Harriman

• Decision Date: 11 June 1993
• Docket Number: No. 18324,18324
• Citation: 857 S.W.2d 445
• Parties: 84 Ed. Law Rep. 1161 The BOARD OF REGENTS FOR SOUTHWEST MISSOURI STATE UNIVERSITY, Appellant, v. George Daniel HARRIMAN, Defendant, American National Insurance Company, a/k/a American National Property and Casualty Company, Respondent, George Daniel Harriman and Belinda Harriman, Intervenors.
• Court: Missouri Court of Appeals

Page 445

857 S.W.2d 445

84 Ed. Law Rep. 1161

The BOARD OF REGENTS FOR SOUTHWEST MISSOURI STATE

UNIVERSITY, Appellant, v. George Daniel HARRIMAN, Defendant,

American National Insurance Company, a/k/a American National

Property and Casualty Company, Respondent,

George Daniel Harriman and Belinda Harriman, Intervenors.

No. 18324.

Missouri Court of Appeals,

Southern District,

Division One.

June 11, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 6, 1993.

Application to Transfer Denied Aug. 17, 1993.

Lee Chestnut, Springfield, for appellant.

Frank M. Evans, III, Cynthia B. McGinnis, Miller & Sanford, P.C., Springfield, for respondent.

PER CURIAM.

The Board of Regents of Southwest Missouri State University (SMSU) brought this action against George D. Harriman (Harriman) to collect three promissory notes, together with accrued interest and attorney fees. Judgment was entered for SMSU, against Harriman, in the amount of $11,159.05 and for court costs. Execution issued followed by garnishments in aid of execution. A garnishment was directed to American National Insurance Co. (American National) as garnishee defendant. After an earlier appeal that upheld the judgment, SMSU filed its motion for judgment on the pleadings in the garnishment proceeding against American National. SMSU sought payment of its judgment against Harriman from a fund that had been held under the direction of American National at the time it was garnisheed. The trial court denied the motion. This court reverses and remands.

This is the third time that this court has addressed issues raised or generated by SMSU's suit against Harriman. In State ex rel. Board of Regents v. Bonacker, 765 S.W.2d 341 (Mo.App.1989), (Harriman I ), this court held that SMSU was entitled to a peremptory change of judge, pursuant to Rule 51.05(a), in a garnishment proceeding. Id. at 347. SMSU had obtained a default judgment against Harriman in 1985. It commenced garnishment proceedings almost three years later in an effort to collect the judgment.

The case was before this court a second time in Board of Regents v. Harriman, 792 S.W.2d 388 (Mo.App.1990), (Harriman II ). After the decision in Harriman I, the trial judge who was originally assigned to the case granted the requested peremptory disqualification. As originally filed, the case had named Southwest Missouri State University as plaintiff. In Harriman II, Harriman asserted "that SMSU had no 'standing' to sue" in its institutional name, 792 S.W.2d at 391; that an action could be maintained only in the name of its Board of Regents. Harriman sought to have the judgment that had been entered against him set aside. The newly assigned trial judge granted Harriman's request. The trial court set aside the default judgment and quashed the execution and garnishments that had issued. On appeal, this court held that although there was no legal entity named "Southwest Missouri State University" (or SMSU):

The use of such "fictitious" name is expressly sanctioned by the legislature in § 174.020 ¹ and by § 174.030 the legislature authorized the Board of Regents to change that "fictitious" name. Where the real party is designated by a name it has adopted and become known by, no reason can be perceived for setting aside a judgment for lack of a legal plaintiff. Bowen v. Buckner, 171 Mo.App. 384, 387-88, 157 S.W. 829, 830 (1913).

792 S.W.2d at 391-92 (footnote omitted). It concluded, "[Harriman] is estopped, as a matter of law, from asserting the issue of lack of legal existence of SMSU." Id. at 392.

Although Harriman II reversed the trial court's order that set aside the judgment that was entered in favor of SMSU and against Harriman, it did not reverse the order that quashed the execution and the writs of garnishment in aid of execution. It stated, "No specific reason was assigned by the trial court for the order quashing execution and garnishments." Id. at 393. It then observed that in reviewing the trial court's decision, "the primary concern of the appellate court is the correctness of the result that is reached." Id. It concluded The judgment or order is to be affirmed if it properly could have been reached on any basis. David v. Shippy, 684 S.W.2d 586, 587 (Mo.App.1985). The legal file does contain [Harriman's and his wife's (as intervenor) ] motion to quash the execution and garnishments. [Harriman] does aver in that motion that SMSU never effected a lien upon [his] property ... because there was no proper service of summons and no proper notice of garnishment served upon garnishee American National Insurance Company. Despite that assertion in a motion before the trial court, SMSU did not include in the legal file any proof of service of the notice and summons on the garnishee. SMSU did not include in the legal file any proof of the levy of the execution. This court is entitled to assume that the omitted portions of the record were unfavorable to SMSU, and that is why they were not included. Daniels v. Griffin, 769 S.W.2d 199, 201 (Mo.App.1989); Delf v. Cartwright, 651 S.W.2d 622, 624 (Mo.App.1983).

Id. at 393-94.

Harriman II also discussed requirements for valid garnishments. It held that because there was no proof of service on garnishee defendant American National, the trial court lacked jurisdiction over the res. It concluded, for that reason, that the trial court's order quashing the execution and garnishment was correct, holding:

[T]he trial court's order setting aside the default judgment in favor of SMSU is reversed. The case is remanded to the trial court with direction to reinstate the judgment. The portion of the trial court's order quashing the execution and garnishments is affirmed.

Id. at 394.

In this appeal, SMSU contends that Harriman II 's determination that there was no service of summons and notice of garnishment on garnishee defendant American National was incorrect. The legal file includes copies of a summons to garnishee and notice of garnishment that was directed to American National. It also has a copy of a sheriff's return showing service on American National.

Notwithstanding the foregoing claims, American National, by its respondent's brief, contends that SMSU has no right to appeal from the trial court's order denying the motion for judgment on the pleadings. American National poses several arguments by which it contends that this court lacks jurisdiction to grant relief to SMSU, and that the trial court lacked jurisdiction to rule on the motion for judgment on the pleadings. It contends that the appeal should be dismissed.

American National, both by a point raised in its respondent's brief and by separate motion, contends that this appeal should be dismissed for failure to comply with Rule 84.04. American National complains that the statement of facts and the points relied on are defective.

This appeal is not based upon facts developed at an evidentiary hearing. The salient fact regarding the garnishment proceeding that produced this appeal is that there is a judgment. The recitation of facts in SMSU's brief is sufficient.

The points relied on apprise this court of the action of the trial court that SMSU complains about. The points apprise this court why SMSU considers the action to be erroneous and contain a statement informing this court wherein the record on appeal supports the position SMSU asserts the trial court should have taken. The points relied on are sufficient. See Bentlage v. Springgate, 793 S.W.2d 228, 229 (Mo.App.1990). American National's motion to dismiss the appeal for failure to comply with Rule 84.04 is denied.

American National next asserts that the order from which SMSU has appealed is not "a final appealable order." It cites three cases for this proposition, State ex rel. Cullom v. Becker, 305 S.W.2d 56 (Mo.App.1957), a case in which there was an attempt to appeal an order denying a motion for judgment on the pleadings; and St. Charles County v. Ross, 718 S.W.2d 209 (Mo.App.1986), and McCready v. Southard, 671 S.W.2d 385 (Mo.App.1984), cases in which there were attempts to appeal orders denying motions for summary judgment. ² The rulings in all three cases did not resolve all pending issues. However, in State ex rel. Cullom v. Becker the court acknowledged that if the trial court had disposed of all issues, the appellate court "could have ruled on the merits" to which the motion for judgment on the pleadings was directed. 305 S.W.2d at 57-58.

In this case the trial court disposed of all pending issues in its order denying SMSU's motion for judgment on the pleadings. It dismissed "an intervenor's petition" filed in the garnishment proceeding by Harriman's spouse. The trial court's order denying the motion for judgment on the pleadings was a special order after final judgment. SMSU may appeal from that special order. § 512.020.

American National contends that the trial court lacked jurisdiction to rule on SMSU's motion for judgment on the pleadings. It contends that "the court's mandate [in Harriman II ] to the trial court only provided for reinstatement of the default judgment set aside by the trial court." American National argues that the trial court was without authority, or "jurisdiction," to take any action after Harriman II other than was necessary "for reinstatement of the default judgment set aside by the trial court."

Although American National has referred to this court's mandate in Harriman II it did not discuss the function that a mandate serves.

Where the judgment of an appellate court calls for the remand of the cause to the trial court for further action the judgment is not self-executing but must be certified back to the trial court for execution. This is done in this state by what is called the mandate, and by it authority and jurisdiction is granted to the lower court to take such steps as are directed. Prasse v. Prasse, 342 Mo. 388, 115 S.W.2d 807 [1938]; Abrams v. Scott, 357 Mo. 937, 211 S.W.2d 718 [1948]....