Gilliland v. Bondurant

• Decision Date: 13 June 1932
• Docket Number: No. 16680.,16680.
• Citation: 51 S.W.2d 559
• Parties: GILLILAND v. BONDURANT et al.
• Court: Missouri Court of Appeals

51 S.W.2d 559

GILLILAND v. BONDURANT et al.

No. 16680.

Kansas City Court of Appeals. Missouri.

June 13, 1932.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

"Not to be officially published."

Suit by Josephine Gilliland against James D. Bondurant, Sr., and others, doing business under the firm and trade name of Palace Bakery. Judgment for plaintiff, and defendants appeal.

Judgment affirmed, and case certified and transferred to Supreme Court.

R. E. Kavanaugh, of Trenton, and J. E. Rieger, S. H. Ellison, and Higbee & Mills, all of Kirksville, for appellants.

A. D. Campbell and John Campbell, both of Kirksville, for respondent.

TRIMBLE, P. J.

This case was heard at a former term, and an opinion was written reversing and remanding the case on the first count of the petition, and holding, with reference to the second count, that as the attack upon it went merely to matters of form and not of substance, the petition on that count could be amended before the next trial, hence there was no need to pass upon it. Motions for rehearing were filed by both sides; respondent's being solely with regard to the first count, while appellants' included both counts. Both motions were sustained. The case has been reargued and submitted at the present term, and it is now again before us, on both counts.

The first count is an action for personal injuries inflicted on March 3, 1921, the suit being filed October 25, 1927.

The second count is to set aside a judgment rendered in a suit brought by plaintiff's father, as her next friend, against defendants for the damages sustained on account of said injury.

A demurrer was filed to the second count on the ground that the same did "not state facts sufficient for the granting of the relief therein prayed." The point of the demurrer is that "plaintiff did not plead that she had a meritorious case or that the judgment was inadequate." No doubt the second count does not contain such allegations in so many words; but the allegations and statement of facts made therein are such that the above-mentioned matters appear therefrom as a matter of law. Two cases are cited in support of the charge that the count is fatally defective, namely, Greenard v. Isaacson (Mo. App.) 220 S. W. 694, and Sauer v. Kansas City, 69 Mo. 46, in the first of which it was sought to enjoin the enforcement of a judgment because of fraud in procuring it, and in the other to enjoin the collection of a judgment for taxes. But these cases have no application here, since they deal with situations vastly different from the one involved in the said second count. On the face of the facts stated in the two cited cases, there appeared to be nothing wrong or improper in the judgments sought to be set aside, but not so in said second count of the case at bar, for here the facts alleged, if true, spoke for themselves. They not only showed fraud in the procurement of the judgment, but also that the latter was wholly inadequate in a case where a young girl had lost her arm through defendants' negligence and was settling, for a mere pittance of $500, not only her own case (for the loss of her arm) but also her father's for loss of his child's services. These facts, which were stated, showed fraud and inadequacy in terms far louder and more impressively than any formal statement to that effect could have done. Besides, the second count "repleads and restates as true all of the allegations of" the first count.

The charge of error in overruling demurrer to the evidence under the second count does not appear in defendants' "Assignment of Errors," but, as the point is argued and discussed later in the brief, we prefer to consider and pass on it. However, we fail to see wherein the evidence was not sufficient. In the evidence under the second count, it appears that plaintiff's father and the defendants reached a settlement of the claim for damages in May, 1921, and, in accordance therewith, an "agreed judgment" was entered in plaintiff's favor for $500. It seems that plaintiff, being then a young girl between 15 and 16 years old, at the request of defendants' then attorneys, signed a request for the appointment of her father as next friend, which last request states that it is in order to bring a suit in her behalf. But in the trial of the said second count (being the action to set aside said judgment), plaintiff testified that she understood from her father that the papers were to be signed in order to settle his, and not her, suit against the defendants; that she did not recollect reading the papers she signed; that she signed the papers referred to, all of which were drawn by defendants' attorneys (not their present attorneys, however) in their office, they having prepared them prior to her being called by them to said office. As stated, these attorneys were not the same attorneys who now represent the defendants. Plaintiff, her father, and her mother also signed receipts and releases reciting the payment of $500 to her father as next friend in settlement of her cause of action, and also any cause of action her father and mother might have against defendants. No express representations were made to plaintiff as to the contents of the papers by the then attorneys for defendants. There were none needed; plaintiff was a child with no one to advise her, or at least none who did advise her, and those who prepared the suit did not have to take the hazard of expressly telling her what they were or of explaining them to her; all they had to do was to merely keep silent, and this they did. Defendants' then attorneys thereupon filed the suit against defendants (their own clients) in behalf of plaintiff by her next friend; defendants entered their appearance thereto, and, without the hearing of any testimony, judgment was rendered in favor of plaintiff for $500. The judge who rendered it testified as a witness on the trial of the second count and stated that no one addressed the court except the (then) attorneys of defendants, and that he, the judge, understood and acted upon the understanding that the judgment entered was an "agreed judgment"; that plaintiff's father was present, but that he, the witness, did not think the father said anything. The evidence under said second count shows that plaintiff was not present. The whole proceeding did not take five minutes. The judgment of $500 was immediately paid, and the $500 was turned over to the plaintiff's father, and plaintiff never, at any time, received any part of it.

The evidence, under the said second count herein, also showed that plaintiff's father was afflicted with paralysis agitans that "affects his mind to a certain extent but not enough but he knew what he was doing." One of defendants' (then) attorneys testified herein that, in that suit, no witness was sworn nor evidence given; that he made a statement of facts to the judge, saying it was agreed that judgment be entered "as it was written up." The evidence shows that plaintiff never knew that any judgment was in her favor and the same counsel appeared on both sides of an adversary proceeding. Hence no suit in her behalf was brought. Arrington v. Arrington, 116 N. C. 170, 21 S. E. 181. But it is now urged that no evidence was introduced under the second count to prove plaintiff had a meritorious case. See Robison v. Floesch Const. Co., 291 Mo. 34, 236 S. W. 332, 20 A. L. R. 1239; Gurley v. St. Louis Transit Co. (Mo. App.) 259 S. W. 895, in each of which cases there was a trial on the count to set aside judgment, but no effort was made therein to show that the plaintiff had a meritorious case. In the Gurley Case the evidence is set forth, and the infant plaintiff was actually present in court, and had a slight opportunity to know (but in fact did not know) that a suit was being brought. But the court held, nevertheless, that the judgment was inherently fraudulent, the plaintiff did not know what was being done, and there was no judicial investigation or determination of the issues.

Moreover, in the trial of the second count in the case at bar, plaintiff's counsel inquired of the court as to whether they should go into the merits of the case. The court replied, "Oh, no, I wasn't trying the merits of the case, don't think counsel had any such understanding as that, did they?" Defendants' counsel replied, "Don't know where they would get it." Plaintiff's counsel then said, "I will not go into the merits of the case." The court: "No."

However, it was shown there was merit in her case, for the petition written and filed by the defendants against themselves, in the case of the $500 judgment, was introduced in evidence, in the trial under the second count to set it aside; and in it defendants accused themselves of having wrongfully caused plaintiff to lose her arm; and the judgment rendered therein which they had also prepared upheld the allegations of the said petition!

Besides, the fact that the defendants' then attorneys prepared all the papers in the case, including the form of the judgment, and were the only attorneys in the case and representing both sides which were adverse to each other, is sufficient to render the $500 judgment void, and calls for setting it aside. Marcom v. Wyatt, 117 N. C. 129, 23 S. E. 169; Walker v. Grayson, 86 Va. 337, 10 S. E. 51; Parker v. Parker, 99 Ala. 239, 13 So. 520, 42 Am. St. Rep. 48; In re Boone (C. C.) 83 F. 944, 957.

The trial court under the second count set aside the "agreed judgment," and thereupon the parties, before entering upon the trial of the first count, entered into a written stipulation which is as follows:

"The parties, plaintiff and defendants, agree that the cause of action stated in the first count of plaintiff's petition shall be submitted to the court, jury waived. If at the close of the case the court is of the opinion the plaintiff has made a case entitling her to have the case submitted to a jury if a jury was trying the same; that is, if the...