Clark v. Fighting Wolf Mining Co,

• Decision Date: 25 February 1919
• Docket Number: No. 2393.,2393.
• Citation: 209 S.W. 307
• Parties: CLARK v. FIGHTING WOLF MINING CO. et al.
• Court: Missouri Court of Appeals

209 S.W. 307

CLARK v. FIGHTING WOLF MINING CO. et al.

No. 2393.

Springfield Court of Appeals. Missouri.

February 25, 1919.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action in justice court by A. Clark against the Fighting Wolf Mining Company and Charles W. Edwards. Judgment for plaintiff, and the last-named defendant appeals. Reversed and remanded, with directions.

H. S. Miller and Owen & Davis, all of Joplin, for appellant.

George P. Walker, of Joplin, for respondent.

STURGIS, P. J.

This case is identical in the essential facts with Tutt v. Fighting Wolf Mining Co., decided concurrently herewith 209 S. W. 304. I fully concur in holding that the order of the circuit court "abating" this cause because of the pendency of the proceedings in bankruptcy against this defendant company was properly made, and that such order or judgment, if it may be called such, is properly interpreted as meaning no more than a stay of any further proceeding in the case to await the outcome of the bankruptcy proceeding, and that its force and effect should be so limited. That the language of a judgment should be read and its meaning determined in the light of the nature and object of the proceeding culminating in the judgment, and that the force and effect of such judgment be limited to the legitimate powers of the court rendering same in the particular case, is shown by Barnes v. Railroad, 122 U. S. 1, 7 Sup. Ct. 1043, 30 L. Ed. 1128, 1132, and Graham v. Railroad, 70 U. S. (3 Wall.) 704, 18 L. Ed. 247, 251, quoted with approval in Charles v. White, 214 Mo. 187, 202, 112 S. W. 545, 21 L. R. A. (N. S.) 481, 127 Am. St. Rep. 674. The meaning and effect of such order or judgment is merely to stay further action in the present case till the bankruptcy proceeding determined whether or not plaintiff was precluded from obtaining a judgment against this defendant, and there is no res judicata in the case.

When therefore the defendant company failed to obtain its discharge in bankruptcy and the time had elapsed precluding its obtaining such discharge, the plaintiff was entitled, by proper motion and notice, to have an order setting aside the order staying the proceeding and a reinstatement of the case on the docket for trial de novo. Instead of moving for such an order the plaintiff filed a motion to affirm the judgment of the justice of the peace on the grounds entitling him only to a reinstatement and trial de novo of this case, to wit, the defendant...