Ford v. Stevens Motor Car Company
| Decision Date | 07 June 1921 |
| Parties | J. W. FORD, Respondent, v. STEVENS MOTOR CAR COMPANY, and SOUTHERN COMMERCIAL AND SAVINGS BANK, a Corporation, Intervenor, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Samuel Rosenfeld, Judge.
AFFIRMED.
Judgment affirmed.
M. W Feuerbacher for the Southern Commercial & Savings Bank.
Leonard Sibley & McRoberts, for the Stevens Motor Car Co. appellants.
(1) (a) The judgment which J. W. Ford attempts to off-set is not a final judgment within the purview of the statute. Sec. 1300, R. S. 1919; 23 Cyc., 1480; Black on Judgments, par. 1005; 15 R. C. L. 822; Zerbe v. M., K. & T. Ry. Co., 80 Mo.App. 417; Gemmell v. Heuben, 71 Mo.App. 298; Prouty v. Swift, 10 Hun, 232; Weathered v. Mays, 1 Tex. 417. (b) The right of offset of judgments is exclusively determined by sec. 1300, R. S. 1919. Caldwell v. Ryan, 210 Mo. 37; Bauer v. Counts, 197 Mo.App. 233. (2) It was error to admit in evidence depositions of witnesses who were present in the courtroom. Sec. 5467, R. S. 1919; Heinbach v. Heinbach, 262 Mo. 69. (3) The appellant Stevens Motor Car Company had a right to prefer its bona-fide creditor, Southern Commercial and Savings Bank. Riley Publicity Co. v. Ryus et al., 202 S.W. 582; New England National Bank v. Montgomery, 192 S.W. 941; Growney v. Lowe et al., 234 Mo. 689; First National Bank v. Fry, 216 Mo. 34; Wall v. Beedy, 161 Mo. 625; Gutta-Percha Mfg. Co. v. Supply Co., 149 Mo. 551; Shelly v. Booth, 73 Mo. 74; Zimmerman v. Produce Co., 156 Mo.App. 596; Russell v. Letton, 56 Mo.App. 548. (4) (a) The respondent did not have the right to off-set the judgment in favor of Stevens Motor Car Company, formerly the Waverly Sales Company, because the said judgment against Ford and in favor of the Stevens Motor Car Company was assigned to the Bank prior to the existence of the judgment recovered by the respondent against the Stevens Motor Car Company and the Priesmeyer-Stevens Automobile Company, the Bank being a bona-fide creditor of the Stevens Motor Car Company at the time the assignment was made. Walton v. Catron, 125 Mo.App. 501; Anglo-American Provision Co. v. Davis, 112 F. 574; Beecher et al. v. Manufacturing Co., 125 N.E. (Ct. of App. of N. Y.) 831; Roberts v. Carter et al., 38 N.Y. 107; Jaeger v. Koeing, 67 N.Y.S. 172; Ledyard v. Phillips, 58 Mich. 204; Wyvell v. Barwise et al., 43 Minn. 171; New Haven Copper Co. v. Brown, 46 Me. 418. (b) The Bank was a bona-fide creditor of the Stevens Motor Car Company and is the holder of the judgment for value. Lowen v. Forsee, 137 Mo. 43. l. c. (5) The court erred in refusing to give the declarations of law requested by defendants at the close of the case. (6) Before the movent can ask a court of equity to offset the judgments, he must show that he made an effort to obtain the payment of the judgment from the co-defendant, Priesmeyer-Stevens Automobile Company, and as there was no evidence in this case showing that such an effort had ever been made or that the Priesmeyer-Stevens Automobile Company was not, and is not now, able to pay the judgment, the movent cannot invoke equitable doctrine to his aid.
Abbott, Fauntleroy, Cullen & Edwards for respondent.
(1) The judgment in this case, J. W. Ford v. Stevens Motor Car Company, was a final judgment within the meaning of the law, though appealed from, and this is especially true since no appeal bond was given. Rodney v. Gibbs, 184 Mo. 1; Creasey v. Creasey, 175 Mo.App. 245; 15 R. C. L., 233. p. 779; Black on Judgments, sec. 960, p. 1141. (2) This is a proceeding for execution and set-off in the case of J. W. Ford v. Stevens Motor Car Company. It is a supplementary or ancillary proceeding in the same case, and inseparably connected with the record in the said case, and the court will take judicial notice of its record affirming the judgment. 15 R. C. L., p. 1112, sec. 43; Avocato v. Dell 'Ara, 84 S.W. 444; Schultz v. Smith, 7 Ky. Law Rep. 837; Reed v. Reed, 108 A. 103; Brokl v. Brokl, 158 N.W. 436; Studebaker v. Mercantile Co., 192 S.W. 545; Schallman v. Haas, 164 P. 336; Abilene etc., Telephone Co. v. Telephone Co., 185 S.W. 356; Wilmer v. Coal & Iron Co., 101 A. 538; Cahall v. Lofland, 108 A. 752; Olson Co. v. Brady, 78 N.W. 864; 1 Greenleaf on Ev. (16th Ed.), sec. 6a. The principles thus announced are recognized by the courts of this state in numerous cases. Chicago Herald Co. v. Bryan, 195 Mo. 590; Ollesheimer v. Mfg. Co., 44 Mo.App. 172; Spengler v. Kaufman, 43 Mo.App. 5; Pelz v. Bollinger, 180 Mo. 262; Dawson v. Dawson, 29 Mo.App. 523. The rule here invoked does not violate the general rule that a court will not take judicial notice of its record in other cases. It is an exception to the general rule, based upon justice and reason. Sewell v. Johnson, 134 P. 704; Ann. Cas. 1915-B, 645, and case note; Case Note, 11 L.R.A. (n. s.) 616; 16 Cyc, 918. (3) The intervenor, Southern Commercial and Savings Bank, had full notice of the pendency of Ford's suit against the Stevens Motor Car Company, and took the assignment of the company's judgment against Ford subject to the equities of Ford to set-off his claim against the company's judgment. 15 R. C. L., p. 779, sec. 233; Crecelius v. Bierman, 72 Mo.App. 355; Bobb v. Taylor, 56 Mo. 313; Skinker v Smith, 48 Mo.App. 91; Ellis v. Kerr, 32 S.W. 444; Hopper v. Ersler, 38 N.Y.S. 176. (4) The proof shows that the Stevens Motor Car Company, both at the time of the assignment and at the time of the filing of this motion, was insolvent, and that the bank knew of such insolvency. Furthermore, the circumstances under which the alleged assignment was made clearly indicate the fraudulent intent to defeat the plaintiff's set-off. Under such circumstances the authorities amply sustain the trial court's action in allowing the set-off in this case. Wabash Ry. Co. v. Bowering, 103 Mo.App. 159; Barnes v. McMullens, 78 Mo. 260; Skinker v. Smith, 48 Mo.App. 91; Field v. Oliver, 43 Mo. 202; Wells v. Cochran, 35 L.R.A. (N. S.) 142, and case note. The evidence was sufficient to sustain a finding, if that were necessary, that the bank acted in bad faith in taking the alleged assignment. Fraud may be proved by circumstances. State to Use v. Mason, 112 Mo. 374; Klauber v. Schloss, 198 Mo. 502; 15 R. C. L., p. 779, sec. 233. (5) But the proof shows that the alleged assignment was not a sale of the judgment, but the assignment was made to and held by the bank as collateral security to secure a pre-existing debt. In such circumstances the bank is not an innocent purchaser in any sense. Crecelius v. Bierman, 72 Mo.App. 355; Loewen v. Forsee, 137 Mo. 42; Johnson v. Grayson, 230 Mo. 401; 15 R. C. L., p. 779, sec. 233. (6) If there was any error in offering the depositions of the officers of the defendants as an admission in plaintiff's case in chief, the error was cured by the defendants' placing the same witnesses upon the stand who testified to the same facts. Briscoe v. Hoff, 75 Mo.App. 288; Hunter v. Heesley, 98 Mo.App. 616; Rounsavell v. Pease et al., 45 Wis. 506; Easterly v. Eppelsheimer, 73 Iowa 260; Hartsfield v. State, 29 S.W. 777; Johnson v. Railroad Co., 58 Iowa 348; Martineau v. May, 43 Wis. 59; Rabinowitz v. Silverman, 223 Pa. 139. (7) There is no merit in the point that the record does not show that the Priesmeyer-Stevens Motor Company was insolvent. It is enough to show a right of recovery against the defendants in this motion. Crecelius v. Bierman, 72 Mo.App. 362. (8) The defendants have shown no prejudical error justifying a reversal of the judgment. R. S. 1919, sec. 1513; Peterson v. Transit Co., 199 Mo. 331. The judgment against Stevens Motor Car Company having been affirmed by this court, and the court having judicial knowledge of that fact, a retrial would necessarily result in a set-off of the one judgment against the other. State ex rel. v. Harrison, 173 Mo. 19; Kansas City v. O'Shea, 69 Mo. 51.
This is an appeal from an order sustaining respondent's motion to set off a judgment in favor of respondent against appellants.
On July 17, 1914, the Stevens Motor Car Company obtained a judgment against respondent for the sum of $ 1852.98. On March 8, 1917, respondent recovered judgment against the Stevens Motor Car Company for the sum of $ 4276.65. On November 21, 1917, respondent filed an amended motion to set off the last-mentioned judgment against the judgment in favor of the Stevens Motor Car Company.
The motion of respondent sets up the facts related above, and alleges that on March 6, 1917, the Waverly Sales Company, which became the Stevens Motor Car Company, pretended to assign the judgment against Ford to the Southern Commercial and Savings Bank, one of the appellants herein, but avers that said assignment was without consideration, and fraudulently made for the purpose of defrauding the said Ford, and further alleging that the Southern Commercial and Savings Bank (hereafter referred to as the Bank) knew at the time of taking the alleged assignment that respondent had filed suit against the Stevens Motor Car Company. Respondent asks that his judgment be set off, and credited with the amount of the judgment held by the Stevens Motor Car Company, and that execution issue for the balance due.
The Stevens Motor Car Company and the Bank filed answers to respondent's motion, putting in issue the validity of the assignment to the Bank, and alleging that the judgment of respondent against the motor car company had been appealed from, and that said cause was still pending and undetermined in this court and was not a final judgment.
Plaintiff offered in evidence, as an admission, the deposition of one Kammerer,...
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