First Nat. Bank in Chester v. Conner, 34357

• Decision Date: 03 October 1972
• Docket Number: No. 34357,34357
• Citation: 485 S.W.2d 667
• Parties: FIRST NATIONAL BANK IN CHESTER, a corporation, Appellant, v. Richard F. CONNER and Helen I. Conner, Respondents, Conner Farms, Inc., a corporation, and Helen I. Conner, Garnishees, Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 667

485 S.W.2d 667

FIRST NATIONAL BANK IN CHESTER, a corporation, Appellant, v. Richard F. CONNER and Helen I. Conner, Respondents Conner Farms, Inc., a corporation, and Helen I. Conner Garnishees, Respondents.

No. 34357.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 3, 1972.

Vogel & Frye by William H. Frye, Cape Girardeau, for appellant.

Finch, Finch, Knehans & Cochrane by Richard G. Steele, Cape Girardeau, for respondent and garnishee Helen I. Conner.

Buerkle, Buerkle & Lowes, by Joe T. Buerkle, Jackson, for respondent and garnishee Conner Farms, Inc.

KELLY, Judge.

This is an appeal from a judgment of the Cape Girardeau Court of Common Pleas setting aside a Summary Judgment entered by it on Counts II and III of the appellant's petition against both Richard F. Conner and Helen I. Conner for $2500.00 plus interest in the amount of $209.99, and attorney's fees in the amount of $406.25, in Count II of the petition, and for $1500.00, plus interest in the amount of $137.67 and attorney's fees in the amount of $245.65 in Count III, and the action of the trial court in quashing the garnishment in aid of execution against garnishees Conner Farms, Inc. and Helen I. Conner.

Appellant filed a three count petition against Richard F. Conner and Helen I. Conner (formerly husband and wife) in the Cape Girardeau Court of Common Pleas. Count I sought to register a foreign judgment which had been entered against both of the Conners in the Randolph County Circuit Court in the State of Illinois on two promissory notes which were also the subjects of Count II and Count III of the petition. Count II of appellant's petition was a claim against both of the Conners on a $2500.00 note. Count III was against them on a $1500.00 note. Attached to the bank's petition was an authenticated copy of the Illinois judgment and photo copies of the notes sued on in Counts II and III. The Illinois judgment was rendered on a 'confession of judgment' in accordance with the terms of the two promissory notes sued on in Count II and III of the petition except it awarded an attorney's fee which exceeded the warrant of authority contained in the notes sued on.

Whether or not personal service was obtained on Helen I. Conner alone is unclear. However, on March 15, 1971, counsel for Helen I. Conner filed a general denial purportedly on behalf of both of the Conners. On March 23, 1971, appellant filed a motion for summary judgment, together with supporting affidavit and photocopies of the two notes. On April 7, 1971, after timely notice was given to the attorney of record for both respondents, appellant's counsel appeared in court and announced to the court that respondents' attorney had been present in court earlier that morning, stated that he would not oppose the motion for summary judgment and then took his leave. Appellant thereupon dismissed Count I of its petition without prejudice and the court sustained appellant's motion for summary judgment and entered judgment in behalf of appellant on both Counts II and III of the petition against both respondents. On April 8, 1971, appellant had a general execution issued and caused the sheriff to summon Conner Farms, Inc. and Helen I. Conner, as garnishees. Interrogatories were addressed to both of the garnishees and Conner Farms, Inc. in its answer to said interrogatories admitted that it 'presently' owed respondent Richard F. Conner, $492.26, and more money which was to become due in the future evidenced by a note payable to him. Appellant filed its reply to Conner Farms, Inc., answers to interrogatories admitting the correctness of all of garnishees' answers except as to a claimed set-off. Appellant asked for a judgment against the garnishee, Conner Farms, Inc., for the reason that garnishee's answer admitted indebtedness presently owing from the garnishee to the respondent Richard F. Conner and on account of further indebtedness to become payable to him in the future. Appellant then filed a motion for Summary Judgment against garnishee Conner Farms, Inc. and Conner Farms, Inc. filed a motion in opposition to appellant's motion for Summary Judgment and further moved to dismiss the garnishment for the reason, among others, that the judgment rendered in Illinois in favor of the bank was unenforceable in Missouri because: 1) it was rendered on 'confession of judgment' notes; 2) appellant was a foreign corporation and could not sue in Missouri courts; and 3) for the further reason that it had already paid to the sheriff of Cape Girardeau County $492.26, all that was owing to respondent Richard F. Conner at that time under the terms of the note executed by the garnishee, and that it had been 'discharged' by the sheriff on account of said payment.

The interrogatories directed to Mrs. Conner as garnishee were specifically directed to a note in her possession which was the property of Richard I. Conner. In her answers to the interrogatories, Mrs. Conner admitted possession of the note in the hands of her counsel. Appellant thereupon filed its reply admitting the correctness of Mrs. Conner's answers and moved for a summary judgment against her. Mrs. Conner filed a 'Motion in Opposition' to appellant's motion for summary judgment and asked that these proceedings be dismissed and the execution and garnishment be quashed. In support of her motion she contends that since her former husband is in arrears in his support and alimony payments awarded to her in their divorce proceeding, she is entitled to an equitable lien for said support and alimony payments remaining unpaid. She further alleged that since appellant chose to obtain a judgment in the Illinois Court a 'merger' was effected and appellant's only relief was to sue on that judgment.

On April 21, 1971, attorney of record for both respondents filed a 'Motion for Leave to Withdraw as Attorney' requesting the court's permission to withdraw from the case as attorney for respondent Richard F. Conner and to withdraw the answer filed on Mr. Conner's behalf for the reason that there were matters in the case which conflicted with his duties as an Assistant Prosecuting Attorney. On that same date the court granted his motion and permitted him to withdraw as attorney for Mr. Conner and also to withdraw the answer previously filed for Mr. Conner. This action was taken ex parte and subsequent to the entry of Summary Judgment against both of the respondents on Counts II and III of appellant's petition. On May 7, 1971, on motion of counsel for the appellant, the court struck from its order of April 21, 1971, the words, 'and to withdraw any answer filed in his behalf'.

On June 2, 1971, appellant's motion for Summary Judgment against both of the garnishees was taken up and argued. It was admitted by counsel for Mrs. Conner in open court that he had never been authorized by Mr. Conner to file any answer on behalf of Mr. Conner. Whereupon appellant's counsel stated that under those circumstances any judgment theretofore rendered against Mr. Conner was invalid. After argument the court entered its order from which this appeal is taken.

Appellant contends that the trial court erred in setting aside the judgment entered against respondent Helen I. Conner on April 7, 1971. Mrs. Conner has not appeared in this court, either pro se, or by counsel, nor has she favored the court with a brief. She has, according to a stipulation filed in the transcript on March 6, 1972, paid $3,000.00 on this judgment in open court to the First National Bank in Chester. Among several bases for its contention that the judgment should be reversed, appellant takes the position that the trial court had no power to set aside the judgment entered against Mrs. Conner because more than thirty days had passed since entry of that judgment. Civil Rule 75.01, V.A.M.R.

On May 26, 1971, after she had been served with interrogatories and filed her answers thereto, Mrs. Conner filed a motion in opposition to appellant's Motion for Summary Judgment against her as garnishee and a furhter motion to dismiss and quash execution. Although she had filed a general denial to appellant's petition she, at this time, raised a number of points, among which were: 1) that she had, pursuant to a valid execution and garnishment, recovered the sum of $5,000.00, toward a judgment entered in the divorce case wherein she was a plaintiff and her former husband was a defendant for past due alimony and support money and which sum was due on a promissory note payable to her former husband's order by Conner Farms, Inc.; 2) that the court should impress an equitable lien with respect to the aforesaid note for balances to become due at future dates as a set-off for past due alimony and child support payments which were unpaid; 3) that appellant, having obtained a judgment on the notes sued on in Counts II and III of its petition in the Circuit Court of Randolph County, Illinois, was barred from recovering on those same notes in this proceeding because said judgment constituted a merger and appellant had dismissed Count I of its petition seeking to register said foreign judgment, and for the further reason that said 'Confession of Judgment Notes' were illegal, unenforceable and void in the State of Missouri; 4) that since the aforesaid judgments were void there could be no valid execution thereon; and, 5) that the note from Conner Farms, Inc., to Richard F. Conner was a nonnegotiable note subject to the terms of a contract and garnishment would deny her right to levy on said payments as they became due to satisfy the judgment she had against her husband for alimony and child support.

After the judgment of April 7, 1971, was entered against respondent Helen I. Conner on both Counts II and III of appellant's petition, the court had thirty days within which it retained control of the judgment and could have taken action without motion of any of the parties. Civil Rule 75.01, V.A.M.R. Respondent Helen I....