Booth v. Scott

• Decision Date: 06 April 1922
• Docket Number: No. 23003.,23003.
• Citation: 240 S.W. 217
• Parties: BOOTH v. SCOTT et al.
• Court: Missouri Supreme Court

240 S.W. 217

BOOTH v. SCOTT et al.

No. 23003.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Motion for Rehearing Overruled April 29, 1922.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by Ida Booth against S. W. Scott and others. From judgment entered for plaintiff in compliance with mandate from the Supreme Court, defendants appeal. Affirmed.

James T. Montgomery, of Sedalia, and Robert O. McLin, and Warner, Dean, Langworthy, Thomson & Borders, all of Kansas City, for appellants.

J. W. Porter, of Ardmore, Okl., and Prince, Hamilton, Harris & Beery, of Kansas City, for respondent.

WALKER, J.

This is an appeal from a judgment of the circuit court of Jackson county, entered by that court in compliance with a mandate of the Supreme Court issued upon a judgment of reversal and remanding of a former appeal by these parties in this same case.

The gravamen of the suit instituted by plaintiff, out of which this appeal is attempted to be based, is to recover $2,000 in money and the cancellation of a note for $3,000 obtained by defendants from plaintiff through fraud. Tried before the circuit court of Jackson county as a proceeding in equity in November, 1913, there was a verdict for defendants. Plaintiff appealed from this judgment to the Supreme Court, which reversed and remanded the case for further proceedings to be had therein in conformity with the opinion of this court. Booth v. Scott, 276 Mo. 1, 205 S. W. 633. The defendants thereupon applied for and were granted a writ of error to the Supreme Court of the United States, which court, upon a hearing in May, 1920, dismissed the writ. Scott v. Booth, 253 U. S. 475, 40 Sup. Ct. 484, 64 L. Ed. 1020.

The mandate issued upon the judgment of reversal and remanding having been sent down by the state Supreme Court to the circuit court, the latter, in April, 1920, entered a judgment in conformity with same. There is no contention that this was not done. The evident purpose of this appeal, therefore, is to have this court again review the facts and determine the law as presented on the former appeal, supplemented by such additional reasons therefor as more mature deliberation may have engendered in the minds of diligent counsel for the defendants.

The course pursued by the counsel for defendants in the preparation of the abstract herein is not only anomalous and unauthorized and as such foreign to our procedure. Such facts set forth in the abstract as are relevant to the matter under consideration include a copy of our mandate to the circuit court, plaintiff's motion for the, entry of a judgment on same, the sustaining of the motion, the entry of a judgment in conformity with the mandate and an application for and affidavits in support of an appeal by defendants and the granting of same. This is not all, however; but the record of the proceedings of the former trial is incorporated, doubtless upon the theory that the judgment rendered therein was not final, and that we will again review that case.

We have said that the parties and the issues in the case as tried are relied upon to furnish the facts for the appeal in the instant case. The matters included therein must be regarded as having finally been determined upon that appeal. As we said in effect in Barrett v. Stoddard County, 272 Mo. loc. cit. 133, 197 S. W. 915:

"They cannot be galvanized into life as undecided issues by incorporating them into this...