Gary Realty Co. v. Swinney

• Decision Date: 29 March 1929
• Docket Number: No. 27233.,27233.
• Citation: 17 S.W.2d 505
• Parties: GARY REALTY COMPANY v. E.F. SWINNEY, Appellant.
• Court: Missouri Supreme Court

17 S.W.2d 505

GARY REALTY COMPANY v. E.F. SWINNEY, Appellant.

No. 27233.

Supreme Court of Missouri. Division One.

March 29, 1929.

Appeal from Jackson Circuit Court. — Hon. Thad B. Landon, Judge.

AFFIRMED.

Frank M. Lowe and Henry L. Jost for appellant.

(1) Defendant Tammen signed the bond sued on herein as a principal and the court erred in holding him a surety. Courts cannot make contracts for the parties. Cement Co. v. Dulaney, 300 S.W. 544; Martin v. Travelers Ins. Co., 310 Mo. 411. The relation of Tammen and Swinney may be proved by evidence aliunde as well as by the instrument itself. Long v. Mason, 200 S.W. 1062; Quackenboss v. Harbaugh, 298 Mo. 240; Bank v. Bunch, 212 Mo. App. 249. (2) Defendant Tammen's Missouri administrators should have been parties defendant, either on their own application or on the application of defendant Swinney. A surety is entitled to have his principal made a party defendant. Green v. Conrad, 114 Mo. 651; Nat. Bank v. Casualty Co., 307 Mo. 417; Robertson v. Carson, 19 Wall. 94. (3) The stipulation waived a jury trial before Judge Hall or his successor, at Independence, and not before the court at Kansas City. (4) Damages for breach of a penal bond with collateral conditions, are limited to the penal amount of the bond, interest not being provided for. Secs. 1030, 1033, R.S. 1919; Board of Education v. Surety Co., 183 Mo. 166; Turner v. Lord, 92 Mo. 113; Walton v. Hurst, 199 S.W. 1043. (5) The certiorari judgment of this court held that the circuit court never acquired jurisdiction of the unlawful detainer case. The motion to quash the execution was a direct attack on the unlawful judgment for lack of jurisdiction in the circuit court. Boonville Bank v. County Col., 298 S.W. 732; Bridge Co. v. Blaser, 300 S.W. 778; Howey v. Howey, 240 S.W. 456; Reger v. Reger, 293 S.W. 415; 15 R.C.L. 839; 23 Cyc. 1062. This court has superintending control over inferior courts. Sec. 6, 1884 Amendments, Mo. Const.; State ex rel. Security Ins. Co. v. Trimble, 300 S.W. 812; State ex rel. McFarland v. Terte, 8 S.W. (2d) 19; State ex rel. v. Trimble, 297 Mo. 104. The question of jurisdiction of the circuit court over the unlawful detainer suit was necessarily determined in the certiorari judgment, as such could not have been rendered without an adjudication of that issue. Laumeier v. Laumeier, 308 Mo. 201; Crary v. Inv. Co., 313 Mo. 448; Pond v. Huling, 125 Mo. App. 474; State ex rel. Gordon v. Trimble, 300 S.W. 475; Coleman v. Haworth, 8 S.W. (2d) 931. (6) The certiorari judgment of this court is res adjudicata in the case at bar. (a) Matters and facts once litigated cannot be relitigated. Southern Pac. Railroad v. United States, 168 U.S. 48; Case v. Sipes, 217 S.W. 306; Spring v. Giefing, 315 Mo. 525; Morehead v. Cummins, 207 Mo. App. 64; Pond v. Huling, 125 Mo. App. 474; Thierry v. Scherrer, 3 S.W. (2d) 722. (b) A judgment is binding upon parties to the suit and their privies whether in contract, estate, blood or law. Scientific Am. Club v. Horchitz, 168 Mo. App. 35; Stolz v. Fidelity Co., 153 Mo. App. 29; Taylor v. Sartorious, 130 Mo. App. 23; Brown v. Wabash, 281 S.W. 64. (c) A judgment in rem is binding on the world. State Bank v. Lillibridge, 316 Mo. 968; Watts v. Levee District, 164 Mo. App. 263; Natl. Bank v. County Collector, 298 S.W. 732; Wilson v. King's Lake Dis., 237 Mo. 39. (7) The judgment of this court in Gary Realty Company v. Swinney, is not res adjudicata herein, for: (a) It was not pleaded. Kilpatrick v. Robert, 278 Mo. 257; Beattie Mfg. Co. v. Gerardi, 166 Mo. 156; Bray v. Land Co., 203 Mo. App. 642; O'Donnell v. Mathews, 284 S.W. 204; Underwood v. City of Caruthersville, 146 Mo. App. 288. (b) Said judgment is not final, having been directly attacked by motion in the nature of writ of audita querela. (c) This court will in a proper manner, when judgment is again before it, correct its own errors. Green County v. Lyda, 263 Mo. 77; Edmonson v. Mo. Pac. Ry. Co., 8 S.W. (2d) 105. (8) The appeal bond given in the unlawful detainer case, superseded and nullified the obligations and liabilities of principals and sureties on the certiorari bond. Secs. 1473, 3036, R.S. 1919.

John S. Wright for respondent; Cooper & Neel, Dupuy G. Warrick and Harry C. Clark of counsel.

(1) Tammen was not a principal on the bond in suit. Gary Realty Co. v. Swinney, 306 Mo. 592; Gary Realty Co. v. Kelly, 284 Mo. 418. (2) Tammen's Missouri administrators were properly excluded as defendants. This suit abated as against Tammen by his death and the nonrevivor within three terms after suggestion of death. Sec. 1351, R.S. 1919; Bostwick v. McIntosh, 278 Mo. 399; Cole v. Parker-Washington Co., 207 S.W. 749; Johnson v. Hiller, 299 S.W. 135. Respondent then had the right, since Tammen was not a principal, to proceed against Swinney alone, whose obligation as surety was several. Secs. 1351, 2155, 1160, R.S. 1919; Manny v. Surety Co., 103 Mo. App. 716; 32 Cyc. 120, 125, par. 4. Administrators cannot waive statutory time limitation for revivor. Cape Girardeau Co. v. Harbison, 58 Mo. 90; Stiles v. Smith, 55 Mo. 362; Wiggins v. Lovering's Admr., 9 Mo. 157. Administrators cannot voluntarily appear without authority of probate court or persons interested in estate to subject it to liability in suit not being prosecuted against estate. Rutherford v. Williams's Legal Representatives, 62 Mo. 252. (3) The unlawful detainer judgment is valid and final, being affirmed by this court. Gary Realty Co. v. Kelly, 278 Mo. 450. Such unlawful detainer judgment is enforcible against Swinney as surety. Gary Realty Co. v. Swinney, 306 Mo. 592. Tammen, being a stranger to the unlawful detainer judgment, was not entitled to prosecute a motion to quash execution. State ex rel. Carter v. Clymer, 81 Mo. 122; Ellis v. Jones, 51 Mo. 180; Oxley Stave Co. v. Butler Co., 121 Mo. 638; Gay v. Orcutt, 169 Mo. 407; Hoover v. Railroad, 115 Mo. 77. Judge Woodson's minority opinion has no conclusive effect as a precedent. 15 C.J. 938; State v. Gochenour, 225 S.W. 690; Mapes v. Burns, 72 Mo. App. 411. (4) Appellant was not in privity with Tammen. This court has expressly so decided. Gary Realty Co. v. Swinney, 306 Mo. 592. No principles of res adjudicata connect up the Tammen proceeding with the instant suit. M.K. & T. Ry. Co. v. Surety Co., 291 Mo. 92; Freeman on Judgments (2 Ed.) par. 252, p. 264. Appellant cannot claim estoppel by res adjudicata for lack of mutuality. Henry v. Wood, 77 Mo. 277; Bennett v. Assurance Corp., 213 Mo. App. 421. (5) The decisions for respondent against appellant are determinative of this suit. These decisions are the two affirmances of the appeal bond suit against appellant. Gary Realty Co. v. Swinney, 306 Mo. 592, 317 Mo. 687. They establish the law of this case. Padgett v. Smith, 205 Mo. 122; Gracy v. St. Louis, 221 Mo. 1. (6) The certiorari bond in suit was not superseded by the appeal bond. State ex rel. v. Sappington, 67 Mo. 529; Wood v. Williams, 61 Mo. 63; U.S. Fidelity Co. v. Calvin, 7 S.W. (2d) 732; 32 Cyc. 87. (7) Respondent is entitled to recover interest. Secs. 1026, 1029, R.S. 1919; State to Use v. Goldspring Dist. Co., 72 Mo. App. 573; Union Savings Assn. v. Edwards, 47 Mo. 445; Wanata v. Avery, 95 U.S. 461; Unterrein v. McLane, 10 Mo. 343; Bd. of Education v. Surety Co., 183 Mo. 166. (8) Swinney's jury waiver is binding. The waiver conforms to the statute, Sec. 1400, R.S. 1919. Such waivers are binding. Gary Realty Co. v. Kelly, 278 Mo. 450. (9) Arguments of law points by respondent's counsel which have not prejudiced appellant cannot constitute admissions estopping respondent. These arguments being overruled, have not prejudiced appellant. Gary Realty Co. v. Kelly, 284 Mo. 418.

FRANK, J.

This is an action on a certiorari bond. The suit was instituted in the Circuit Court of Jackson County, at Independence, on September 8, 1919, against E.F. Swinney and H.H. Tammen. Plaintiff recovered judgment against defendant Swinney, from which he appealed.

The facts giving rise to the present proceedings are as follows:

On November 1, 1915, plaintiff instituted suit against E.P. Kelly, Paul LeMarquand, A. LeMarquand, W. LeDoux, F.G. Bonfils, H.H. Tammen and Empress Theater Company, a corporation, under the forcible entry and detainer statutes for the possession of certain real estate in Kansas City. The action was brought before a justice of the peace in Jackson County, but before the day of trial the proceedings were removed to the circuit court by certiorari, on the application of defendants A. LeMarquand and W. LeDoux. The bond filed with the application for certiorari was executed by LeMarquand and LeDoux as principals and E.F. Swinney as surety, and was conditioned that they would not suffer or commit waste or damage on the premises sued for, would pay all rents and profits, damages and costs that might be adjudged against them, and otherwise abide the judgment of the circuit court. Defendant Tammen signed the bond, although his name does not appear therein either as principal or surety.

After the unlawful detainer suit reached the circuit court plaintiff dismissed the action as to defendants F.G. Bonfils, H.H. Tammen and Empress Theater Company, and the cause proceeded to trial against the remaining defendants and resulted in a judgment in favor of plaintiff for restitution of the premises, four thousand dollars damages, and rents and profits at the rate of thirteen hundred dollars per month from March 18, 1916, until restitution of said premises be made.

Defendants Kelly, A. LeMarquand and W LeDoux applied for an appeal and tendered an appeal bond in the sum of twenty-five thousand dollars, executed by themselves as principals, and defendant E.F. Swinney as surety. The bond was approved and an appeal allowed to this court, where the judgment of the trial court was affirmed. [Gary Realty Co. v. Kelly, 278 Mo. 450, 214 S.W. 92.] Our mandate affirming the judgment was returned to the trial court...