Cofer v. Riseling
| Decision Date | 05 February 1900 |
| Citation | 55 S.W. 235,153 Mo. 633 |
| Parties | COFER et al., Trustees MINERS LODGE, ANCIENT ORDER OF UNITED WORKMEN, v. RISELING, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Affirmed.
Galen & A. E. Spencer for appellant.
(1) To permit plaintiffs to recover in this action would deprive Knowles of his property without notice, without a day in court and without due process of law. They seek to recover solely as creditors of Knowles. River Rendering Co. v Behr, 77 Mo. 91; Lowry v. Rainwater, 70 Mo 152; Clark v. Mitchell, 64 Mo. 564; Underwood v Green, 42 N.Y. 140; Rockwell v. Nearing, 35 N.Y. 302; Wynehamer v. People, 13 N.Y. 378; State v. Ryan, 36 N.W. 823; Knauer v. Louisville, 41 L. R. A. 219. (2) Defendant can raise this question. Payment under a judgment in this suit would be no bar to another action against defendant by Knowles. River Rendering Co. v. Behr, 77 Mo. 91. (3) The contention of defendant goes to the right of action itself. It is not like an objection of defect of parties, which may be waived where a cause of action exists as to the parties in court. Here plaintiff's right of action depends solely on the statute, and this can not give the right to take a man's property without due process of law, hence this action must fail. (4) The circuit court should have sustained defendant's motion to dismiss the cause. The justice of the peace had no jurisdiction, and the circuit court acquired none on appeal. Rankin v. Fairley, 29 Mo.App. 587; Barnett v. Railroad, 68 Mo. 57; Peddicord v. Railroad, 85 Mo. 160; Cooper v. Barker, 33 Mo.App. 181; McQuoid v. Lamb, 19 Mo.App. 153.
J. W. McAntire and Clark Craycroft for respondents.
Respondent's action is based on sections 5209, 5210, 5214 and 5215, of the Revised Statutes of 1889. The first section 5209, gives to the loser the right to recover the money lost. Section 5210 gives to the creditor of the loser the right to recover in a direct action at law against the winner. Section 5214 confers jurisdiction upon justices of the peace in case of this action. Section 5215 declares betting upon any election authorized by the Constitution and laws of this State gaming.
The respondents are the trustees of Miners Lodge No. 60, A. O. U. W., an unincorporated fraternal and benevolent order, and as such are entitled, by the by-laws thereof, to the custody of all property and money belonging to the society. One J. B. Knowles, was the receiver or treasurer of the society, and as such in October, 1896, had in his possession $ 714.69 of its money. In October, 1896, Knowles made a bet of $ 100 with the defendant, Riseling, that W. J. Bryan would be elected President of the United States. The money was placed in the hands of a stakeholder. The defendant won, and received the money. The plaintiffs instituted this suit before a justice of the peace, to recover the one hundred dollars, alleging that the society is a creditor of Knowles, and that the money he put up belonged to the society and that the defendant knew such to be the fact. The plaintiffs recovered judgment before the justice of the peace, and the defendant appealed to the circuit court. In the circuit court the defendant demurred to the petition, and the court overruled the demurrer. The defendant then moved to dismiss the case and to strike the same from the docket. The demurrer and the motion to dismiss are in legal effect, and in this case almost in words, the same, and proceed upon substantially the same grounds. [State ex rel. v. Simmons Hardware Co., 109 Mo. 118, 18 S.W. 1125; Austin v. Loring, 63 Mo. 19.] As the defendant participated in the trial of the case upon its merits, he waived the right to have the ruling of the trial court upon the demurrer and motion to dismiss (which was but a repetition of the demurrer) reviewed by this court. [West v. McMullen, 112 Mo. 405, 20 S.W. 628.]
At the beginning of the trial the defendant objected to the introduction of any evidence, assigning as grounds therefor: 1st, that the justice of the peace had no jurisdiction of the case at all; 2d, that no statement of any cause of action had been filed before the justice; 3d, that the petition fails to state a cause of action; and, 4th, that the section of the statute under which this action is brought is unconstitutional. The court overruled the objection, and the defendant saved his exception.
The plaintiffs' testimony tended to prove the allegations of the petition and showed that in October, 1896, Knowles, as receiver or treasurer of the society, had $ 714.69 of the society's money; that he wagered $ 100 thereof with the defedant upon the result of the presidential election and lost the bet, and that the defendant received the money from the stakeholder. Knowles also made other wagers, amounting to something over three hundred dollars, upon the election, using the trust money for that purpose, and of the $ 714.69 the society only succeeded in recovering about seventy-five dollars from Knowles. There was no direct evidence that the defendant knew that the money he won from Knowles was a part of the trust fund. Neither was there any evidence as to whether Knowles had any other money or property of his own. He did not appear at the trial and the testimony seems to indicate that he could not be found if process should be issued against him. The defendant demurred to the evidence at the close of the plaintiffs' case, and upon the court overruling it, stood upon the ruling, offered no testimony, let judgment go against him, and after proper steps appealed to this court.
I.
The defendant first contends that section 5210, Revised Statutes 1889, is unconstitutional because it "deprives Knowles of his property to be taken without notice, without a day in court and without due process of law."
The statute in reference to gaming, of which section 5210 is a part, has many times been construed by this court and has always been enforced. Section 5209 permits the loser of any money at any game or gambling to recover the same by civil action. Section 5210 provides: "The heirs, executors, administrators and creditors of the person losing may have the same remedy against the winner as provided in the preceding section."
In Williams v. Wall, 60 Mo. 318, this court considered this statute and pointed out that under section 5209, the loser could recover the money from the winner or any person to whom it had been transferred, no matter how innocent or ignorant of the facts the transferee might be, while under section 5210 "the heirs, legal representatives and creditors of the losing party are, however, limited by the terms of the second section" (now 5210) "to a recovery against the winner alone." It was also therein said: "The central idea of the act before us, which is evidently in aid of the statute defining and punishing gambling as a criminal offense, is to discourage and suppress gaming by the most effective of all methods, that of preventing the gambler from retaining the spoils of his nefarious vocation, and from successfully transferring them to colleagues as unscrupulous as himself."
In one form or another what is now section 5209, Revised Statutes 1889, has been upheld by this court. [Laytham v. Agnew, 70 Mo. 48; Connor v. Black, 132 Mo. 150, 33 S.W. 783.] And also by the Courts of Appeals. [Mace v. Vendig, 23 Mo.App. 253; Swaggard v. Hancock, 25 Mo.App. 596; Crooks v. McMahon, 48 Mo.App. 48.] And section 5210, Revised Statutes 1889, has been considered and declared legal by this court in Crawford v. Spencer, 92 Mo. 498, 4 S.W. 713. Both sections 5209 and 5210 were recognized and enforced as valid, constitutional laws in the circuit court of the United States for the Western District of Missouri, by Philips, J., in Savings Bank of Kansas v. National Bank of Commerce, 38 F. 800.
However it is useless to pursue the discussion, for the defendant can not make the objection that this proceeding would deprive Knowles of his property without due process of law. Such a plea could be only considered when made by Knowles. There is due process of law as to the defendant and that is all he is entitled to ask. The fact that Knowles might hereafter sue defendant for this same debt is no valid objection to the constitutionality of the law. Such a consideration only bears upon the question whether Knowles is a necessary party to this action. Aside from this, at common law Knowles could not sue defendant to recover money lost at gaming. Then the only remedy the law afforded the loser was to refuse to aid the winner to collect the money from the loser. Gambling was considered contra bonos mores and therefore the courts refused to aid the winner to collect or the loser to recover the money or thing bet. [Savings Bank of Kansas v. National Bank of Commerce, 38 F. 800 and cases cited; Hayden v. Little, 35 Mo. 418.] When the money was paid, as is the case here, the right to and property in the thing wagered passed to the winner, and the courts refusing to aid the loser to recover it, the loser had no right or property which the law recognized, and therefore it could not be said that any proceeding against the winner to recover or gain possession of the thing wagered deprived the loser of his property or rights without due process of law. In such a case if the thing wagered did not belong to the loser, the true owner could recover it in a direct action against the winner, without joining the loser, just as effectually as the owner of the stolen goods could recover his property from the purchaser thereof from the thief, for value and without notice, and without joining the...
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