Fadler v. Gabbert

• Decision Date: 04 September 1933
• Docket Number: 30418,30419
• Citation: 63 S.W.2d 121,333 Mo. 851
• Parties: Robert Fadler, Raymond Fadler, Charlotte Fadler, Herman J. Voights, Jr., William Fadler, Dora Michael, Dorothy Michael, Robert Michael, Charles D. Fadler, Ruth Fadler, Paul Fadler, Donald Fadler, Catherine Fadler, Jackry Fadler, Emma Whipple, Earl Whipple, Luella Whipple, Ruth Whipple, Henry Whipple, Wilbur Whipple, Caroline Baker, Grace Baker, Jacob Baker, Prince Baker, Rosnell Baker, Dewey Baker, Myrtle Fadler Yohe, alias Yoke, Leona Baker Hunt, Opal Miller, Frances Hunt, Helen Hunt, Jack Hunt, Mary Leone Hunt, Robert Lee Hunt, Doris Baker Biswell, Betty Jo Biswell, Mary Jellison, Gladys Jellison, Harold Jellison, Jeanette Jellison, Virginia Jellison, Ed Fadler, Caroline Fadler Reynolds, Harriet Reynolds, Dora Schaefer, Vernon Fadler, Margaret Fadler, Fred Fadler, Johann Fadler, Hedwig Fadler Meyer, Trina Fadler Meyer, Doratche Fadler Bocke, Adele Fadler Mullmeyer, Heinrich Fadler, Herman Fadler, Heinrich Von Hollen, Anna Katherine Von Hollen, Herman Von Hollen, Dora Von Hollen Rehling, Anna Wehrkamp Hustedt and Henry Hustedt v. George H. Gabbert, Edith Marie Gabbert, Clare F. Duvall, Hume B. Duvall, Esther Silvers, Elmer B. Silvers, Adelheid Schumacher, sometime calling herself Adelheid Fadler or Adelaide Fadler or Adelaide Schumacher, Henry Knacke, Guardian, George B. Tracey, O. L. Monahan, Flora Monahan, E. P. Vaughan, Appellants
• Court: Missouri Supreme Court

63 S.W.2d 121

333 Mo. 851

Robert Fadler, Raymond Fadler, Charlotte Fadler, Herman J. Voights, Jr., William Fadler, Dora Michael, Dorothy Michael, Robert Michael, Charles D. Fadler, Ruth Fadler, Paul Fadler, Donald Fadler, Catherine Fadler, Jackry Fadler, Emma Whipple, Earl Whipple, Luella Whipple, Ruth Whipple, Henry Whipple, Wilbur Whipple, Caroline Baker, Grace Baker, Jacob Baker, Prince Baker, Rosnell Baker, Dewey Baker, Myrtle Fadler Yohe, alias Yoke, Leona Baker Hunt, Opal Miller, Frances Hunt, Helen Hunt, Jack Hunt, Mary Leone Hunt, Robert Lee Hunt, Doris Baker Biswell, Betty Jo Biswell, Mary Jellison, Gladys Jellison, Harold Jellison, Jeanette Jellison, Virginia Jellison, Ed Fadler, Caroline Fadler Reynolds, Harriet Reynolds, Dora Schaefer, Vernon Fadler, Margaret Fadler, Fred Fadler, Johann Fadler, Hedwig Fadler Meyer, Trina Fadler Meyer, Doratche Fadler Bocke, Adele Fadler Mullmeyer, Heinrich Fadler, Herman Fadler, Heinrich Von Hollen, Anna Katherine Von Hollen, Herman Von Hollen, Dora Von Hollen Rehling, Anna Wehrkamp Hustedt and Henry Hustedt v. George H. Gabbert, Edith Marie Gabbert, Clare F. Duvall, Hume B. Duvall, Esther Silvers, Elmer B. Silvers, Adelheid Schumacher, sometime calling herself Adelheid Fadler or Adelaide Fadler or Adelaide Schumacher, Henry Knacke, Guardian, George B. Tracey, O. L. Monahan, Flora Monahan, E. P. Vaughan, Appellants

Nos. 30418, 30419

Supreme Court of Missouri

September 4, 1933

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed.

James H. Harkless and E. B. Silvers for appellants.

(1) Unless the contrary appears, the judgment of the circuit court is presumed to be based upon proper procedure to give the court jurisdiction. Lack of jurisdiction must be shown. Gill v. Sovereign Camp W.O.W., 236 S.W. 1075. (2) Notice by publication to the defendants in suit No. 210647 was given according to law. R. S. 1929, sec. 747. (3) The judgment in suit No. 210647 being recorded May 1, 1925 became absolute as to all parties on and after May 1, 1928 before this cause was instituted. R. S. 1929, sec. 1083. (4) The statute making the judgment final after three years applies to everyone, regardless of age, coverture or mental status. No exceptions are provided. See statute above cited. (5) The administrator of Dietrich Fadler's estate was not a necessary or proper party to case No. 210647, not having been ordered to take charge of the real estate. Clay v. Walker, 6 S.W.2d 965; Spicer v. Spicer, 249 Mo. 582, 155 S.W. 837; Merry v. Freeman, 44 Mo. 522; McKee v. Downing, 224 Mo. 115, 124 S.W. 7. (6) If plaintiffs are all heirs or devisees of Dietrich Fadler, as they allege, then they are all bound by the judgment against his unknown heirs. And likewise if they are heirs of his heirs. Simms v. Thompson, 236 S.W. 885. (7) Under this amended petition, this land would pass to the heirs of Dietrich Fadler, whether by law or by his will. The word heirs means those who at the time of his death, would take by the law of descent. R. S. 1929, sec. 307. (8) Unknown minor defendants need not be represented by guardian ad litem. Kountz v. Davis, 34 Ark. 590. (9) Under this petition, if we imagine some provisions in Dietrich Fadler's will, not pleaded, but which might give some nonresident or unknown minor a beneficial interest under the trust thereby created, such minor is bound because the trustee of the trust estate was made a defendant in cause 210647. Coerver v. Crescent L. & Z. Corp., 286 S.W. 5; Collins v. Crawford, 214 Mo. 167, 112 S.W. 543. (10) Fraud which will authorize the setting aside of a judgment must be collateral to the issues decided by the judgment, and must be in the very procuring of the judgment. These cases are decisive of the case at bar. Gallagher v. Chilton, 192 S.W. 409; Wolfe v. Brooks, 177 S.W. 337; Shemwell v. Bettis, 174 S.W. 390; Rogers v. Dent, 239 S.W. 1075; McDonald v. McDaniel, 242 Mo. 176, 145 S.W. 454. To set aside a judgment for fraud the plaintiff must plead and prove facts, not conclusions. Mangold v. Bacon, 141 S.W. 653. (11) The fact that the cause of action is a false or fraudulent one will not authorize the setting aside of the judgment, even though plaintiff knew it was false. McDonald v. McDaniel, 242 Mo. 176, 145 S.W. 453. (12) A party is not bound to disclose facts to his opponent which are detrimental to such party's case; and failure to do so is not fraud. Vandeventer Trust Co. v. Western Stoneware Co., 197 Mo.App. 132, 193 S.W. 1000; 34 C. J. 475, note 99; McDonald v. McDaniel, 242 Mo. 172, 145 S.W. 453.

A. N. Gossett, Henry S. Conrad and Harvey E. Hartz for respondents.

(1) This court in passing on the judgment of the trial court on appellants' demurrers will regard plaintiffs' amended petition as a whole and will give each allegation in the petition consideration in connection with the other allegations of the petition. A demurrer challenges the sufficiency of the petition as a whole and not the separate parts of the petition. Interstate Ry. Co. v. Railroad Co., 251 Mo. 718, 158 S.W. 349; Nye v. Guaranty Co., 37 S.W.2d 991; 49 C. J. 426. Separate allegations of the petition can be attacked only by a motion to strike, and the preserving of the ruling of the trial court in a bill of exceptions. Sec. 785, R. S. 1929; Wentzel Tobacco Co. v. Walker, 123 Mo. 669; Walker v. Railroad, 193 Mo. 472. (2) Plaintiffs in their petition include all of the parties in interest adverse to the defendants and all the parties entitled to any of the relief prayed for. It is conceded that plaintiffs in this action include all the proper and necessary parties plaintiff to this action, therefore, a mere misjoinder of parties plaintiff and the overruling of a demurrer raising that point constitute harmless error. Scott v. Trust Co., 175 S.W. 920; Nave v. Adams, 107 Mo. 421; Mann v. Doerr, 222 Mo. 15; Volkart v. Groom, 9 S.W.2d 949. (3) Plaintiffs' amended petition states a good cause of action to set aside the two judgments obtained by the defendants in causes No. 210647 and No. 288305, Circuit Court of Jackson County, Missouri, on the ground that said judgments were procured by fraud practiced on the court and on these plaintiffs, and which prevented a fair submission of the controversy to the court which rendered these judgments, and the action of the trial court in overruling appellants' demurrers and rendering judgment for plaintiffs herein, should be affirmed. Howard v. Scott, 225 Mo. 685; Marely v. Norman's Land and Mfg. Co., 289 Mo. 221, 232 S.W. 704; Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650; Davidson v. Real Estate & Inv. Co., 226 Mo. 1, 125 S.W. 1143; Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94; Wonderly v. Lafayette County, 150 Mo. 635; Charter Oak Life Ins. Co. v. Cummings, 90 Mo. 267; Krashin v. Grizzard, 326 Mo. 606, 31 S.W.2d 984; Murphy v. Farmers Bank, 11 S.W.2d 1066; Link v. Link, 48 Mo.App. 347. (4) Plaintiffs' amended petition also states a cause of action in favor of the infant plaintiffs for avoidance of the fraudulent judgments in question, on the ground that no guardian ad litem was appointed for said infants in said actions. There must be both valid service and the subsequent appointment of a guardian ad litem before any judgment, against such infant defendants, becomes valid and binding. Charley v. Kelley, 120 Mo. 143; Weiss v. Coudrey, 102 Mo.App. 69. (5) The Adelheid Schumacher judgment in cause No. 210647 was also void as to the defendant, Herman J. Voights, trustee under the will of Dietrich Fadler, for the reason that he was not a party of said action in his capacity as trustee. State ex rel. Hospes v. Branch, 134 Mo. 604; Dibert v. D'Arcy, 248 Mo. 661, 154 S.W. 1116; Kirk v. Ins. Co., 38 S.W.2d 521. (6) Appellants in their actions No. 210647 and 288305, so arranged the names of the defendants therein so that the names of various other parties would first appear as defendants before the names of any defendant named Fadler, Voights or Booth would appear and that their purpose and intent in doing so was in furtherance of their fraudulent scheme. (7) The conduct of appellants, Attorneys Silvers and Monahan, in subsequently defrauding their own client, Adelheid Schumacher, out of her share of what was recovered in said cause No. 210647 is material and competent as tending to show an original fraudulent intent. 27 C. J. 59; Minx v. Mitchell, 42 Kan. 688, 22 P. 709; Elwell v. Russell, 71 Conn. 462, 42 A. 862; McCombs v. Travelers Ins. Co., 159 Iowa 435, 141 N.W. 328.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

The question for decision in this case is whether the Circuit Court of Jackson County at Kansas City rightly overruled the separate demurrers to plaintiffs' amended petition, filed by two groups of defendants. Final judgment in favor of plaintiffs was entered, defendants having stood on their demurrers and declined to plead further. From this judgment defendants took two separate appeals which will be decided together.

Plaintiffs sued in equity to have avoided for fraud in their procurement two decrees, one in a suit to quiet title, the other in an action for partition, and also to have annulled certain deeds which were passed in the interval between the decrees. The land affected by the litigation consists of improved lots 236 and 237 in block 17, McGee's Addition to Kansas City Missouri, fronting ninety-nine feet on the west side of Walnut Street, commencing at a point forty-nine and one-half feet south of the southwest corner of Fifteenth and Walnut Streets. The petition alleged that the land was of the reasonable value of $ 125,000. The demurrers are general and specific. It is necessary therefore, to set out with some detail the allegations of the amended petition which covers forty-four pages of the abstract. A summary...