Bunch v. United States

• Decision Date: 02 September 1918
• Docket Number: 4999.
• Citation: 252 F. 673
• Parties: BUNCH et al. v. UNITED STATES ex rel. and to the Use of TOWNSEND et al.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F. 673

BUNCH et al.

v.

UNITED STATES ex rel. and to the Use of TOWNSEND et al.

No. 4999.

United States Court of Appeals, Eighth Circuit.

September 2, 1918

John H Lucas, of Kansas City, Mo. (L. E. Crook, of Osceola, Mo., on the brief), for plaintiffs in error.

William D. Tatlow, of Springfield, Mo. (Ewing Y. Mitchell, of Springfield, Mo., on the brief), for defendants in error.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

SANBORN Circuit Judge.

The plaintiffs in error in this case are J. T. Bunch, W. H Duncan, and W. P. Tucker, who are the county judges of St Clair county, Mo., and William J. Mathews, the collector George Virgil Higgins, the clerk, and E. M. Terry, the treasurer, of that county. They complain that the court below, notwithstanding their return to an alternative writ of mandamus served upon them, issued its peremptory writ commanding the judges to levy $2.50 on each $100 of the assessed value of the property in St. Clair county, and the collector, clerk, and treasurer to make return of their willingness to collect such levy and pay over the proceeds thereof to the relators, who are the owners of that certain judgment in favor of Joseph B. Townsend, Jr., J. Barton Townsend, and Charles C. Townsend, for $338,162.43, and against St. Clair county, rendered in the court below on the 4th day of May, 1914.

A brief statement of the origin of this judgment will materially aid in a ready understanding of the issues to be considered. Under an act to incorporate the Osage Valley & Southern Kansas Railroad Company, approved November 21, 1857 (Session Laws of Missouri 1857, p. 59), and an act to incorporate the Tebo & Neosho Railway Company, approved January 16, 1860 (Session Laws of Missouri 1859-60, p. 402), St. Clair county issued and delivered its bonds and coupons. Joseph T. Murtagh brought an action in the United States Circuit Court for the Western District of Missouri, the predecessor of the court below, against the county on some of these bonds and coupons, and on April 24, 1884, recovered a judgment against it thereon. Upon that judgment of April 24, 1884, Murtagh brought an action in the same court against the county and recovered a judgment against it thereon on November 29, 1895. Upon that judgment of November 29, 1895, Murtagh brought an action against the county in the same court and on December 16, 1905, recovering a judgment against it thereon. Upon that judgment of December 16, 1905, the relators, to whom Murtagh had assigned the judgment, brought an action against the county in the court below, and on May 4, 1914, recovered the judgment against it thereon for $338,162.43, upon which the peremptory writ of mandamus in this case is based.

One of the reasons why the county judges insist that the writ should not have issued is that they allege in their return to the alternative writ that all these judgments were void because neither Murtagh nor the relators, all of whom were citizens and residents of states other than Missouri, were ever the real owners of the bonds or the coupons, or the judgments thereon, but that these bonds, coupons, and judgments were always owned by residents and citizens of the state of Missouri, so that no diversity of citizenship between the parties to the actions ever existed. But these alleged facts, even if they existed, constitute no legal reason why the peremptory writ should not issue, because the question whether they did or do exist is by these judgments rendered res adjudicata against the county, and therefore against its officers, who have no interest or standing here, save as its agents or representatives. These judgments against the county rendered, not only every issue and defense made by the county in the actions on which they are founded, but every issue and defense that might have been made by the county in these actions, res adjudicata against it and its officers and agents, as between them and the plaintiffs in those judgments. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195; St. Louis, K.C. & C.R. Co. v. Wabash Railroad Co., 152 F. 849, 861, 81 C.C.A. 643, 655; Commissioners v . Platt, 79 F. 567, 571, 572, 25 C.C.A. 87, 91, 92; Des Moines Navigation Co. v. Iowa Homestead Co., 123 U.S. 552, 8 Sup.Ct. 217, 31 L.Ed. 202; In re Sawyer, 124 U.S. 200, 220, 8 Sup.Ct. 482, 31 L.Ed. 402. And the defense which the county judges here seek to interpose might have been made in any of the actions on which these judgments are based. It is too late to interpose this alleged defense now on this application for a mandamus upon the last judgment to compel the county officers to levy for and pay that judgment against the county, a mandamus which is the mere equivalent and substitute for an execution on a judgment against an individual. Ralls County Court v. United States, 105 U.S. 733, 734, 26 L.Ed. 1220; United States v. New Orleans, 98 U.S. 381, 397, 25 L.Ed. 225.

Another contention which the county judges make why the writ should not have issued is untenable for the same reason. That contention is that the writ should not have issued, because they alleged in their return that the judgment of May 14, 1914, was void for the reason that more than 10 years had elapsed from the date of the original judgment sued on in said action, without revival or payment made thereon, and that under the laws of the state of Missouri such original judgment could only be enforced by revival or payment, and no suit could be brought thereon. Revised Statutes of Missouri 1909, Sec. 1912. It is not admitted or intimated that this contention is sound, or that the alleged facts therein, if they exist, would have constituted any defense to any of the actions on the judgments which have been recited. Lafayette County v. Wonderly, 92 F. 313, 317, 34 C.C.A. 360, 364; Town of Fletcher v. Hickman, 165 F. 403, 404, 405, 91 C.C.A. 353, 354, 355; Cranor v. School District, 151 Mo. 119, 123, 52 S.W. 232; McFaul v. Haley, 166 Mo. 56, 62, 63, 64, 68, 65 S.W. 995; Tice v. Fleming 173 Mo. 49, 53, 55, 72 S.W. 689, 96 Am.St.Rep. 479; Goddard v. Delaney, 181 Mo. 564, 571, 80 S.W. 886; Bick v. Robbins, 131 Mo.App. 670, 674, 111 S.W. 612. Indeed, the authorities just cited leave little or no doubt that this contention cannot be maintained even if the facts are as alleged. It is not necessary, however, to discuss that question at length in this case, for if that contention is unsound, or if those alleged facts did not exist, or did not constitute any defense to any of the actions on the judgments, that contention and those alleged facts present no sound reason why the payment of the judgment of May 14, 1914, should not be enforced by mandamus. If, on the other hand, that contention is sound, and if those alleged facts did and do exist, then that contention and those facts constituted a good defense to the action which resulted in the judgment of May 14, 1914, which the county either made or might have made in that action, and therefore that judgment renders that contention, the existence of those alleged facts, and the validity of the defense founded thereon res adjudicata against the county and its officers and agents, and conclusively estops them from availing themselves thereof now to prevent the enforcement of the judgment by mandamus. Even if the decision of the court and its adjudication of this defense on May 14, 1914, were erroneous, nevertheless the judgment of that date is not void, may not be attacked collaterally, and is equally conclusive against the county and its judges, for the county had notice of the action which resulted in the judgment, had an opportunity to defend against it, the court had jurisdiction to hear and determine the defense now presented, had jurisdiction of the parties to and the subject-matter of the action, and the county did not avail itself of the only remedy it had, a writ of error to correct the error of the court, if it committed any, in the rendition of that judgment of May 14, 1914.

Another reason why the county judges contend that the court below should not have issued the writ is that they alleged in their return that the judgments were void for fraud because the residents and citizens of Missouri, whom they alleged were and are the real owners of the bonds and coupons upon which Murtagh sued the county, caused Murtagh to represent, and he did falsely and fraudulently represent, himself to be the owner of these bonds and coupons on which he obtained his judgment in 1884, in order to give color to his claim of adverse citizenship of the parties in that action, and to perpetrate a fraud upon the court which heard that action that these Missouri owners caused Murtagh to assign this judgment to the relators, and caused them to represent, and they did falsely represent, that they were the owners of the judgment assigned to them for the same purpose; and that the falsity of these representations was unknown to the county and was fraudulently concealed from it until the alternative writ of mandamus was issued on June 10, 1915. But these facts, if they existed, present no legal or sufficient reason why the peremptory writ should not issue. If they exist, the judgments and the adjudications these judgments evidenced were not void. At most they were available only upon proof of the alleged fraud, and that proof was incompetent and inadmissible save in a plenary suit in equity to avoid the judgments for the fraud. On their faces these judgments were regular and valid. There is no claim that the county was not served with proper process in the actions which resulted in them, or that on the facts presented to the court it did not have plenary jurisdiction of the subject-matter or of the parties to them. They are therefore impervious to a collateral attack for fraud...