Hicks v. La Plant

• Decision Date: 20 May 1941
• Citation: 151 S.W.2d 104,236 Mo.App. 299
• Parties: J. P. HICKS, APPELLANT, v. GEORGE LA PLANT, RESPONDENT
• Court: Missouri Court of Appeals

151 S.W.2d 104

236 Mo.App. 299

J. P. HICKS, APPELLANT, v. GEORGE LA PLANT, RESPONDENT

Court of Appeals of Missouri, Springfield

May 20, 1941

Appeal from the Circuit Court of New Madrid County.--Hon. Louis H Schult, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Geo. W Barham and Sharp & Sharp for appellant.

(1) The Act No. 39 passed by the Legislature of the State of Arkansas regarding service on nonresidents using highways of the State is constitutional. Kelso v. Bush (Ark. Law Reporter Vol. 59, p. 67), 191 Ark. 1044, 89 S.W.2d 594; Hess v. Pawloski, 274 U.S. 352; Jones v. Pebler, 371 Ill. 309; 125 A. L. R. 451, n. p. 457. (2) Judgment obtained in a court of general jurisdiction of a sister state which had jurisdiction of the parties to the action is presumably valid. Toler v. Coover, 71 S.W.2d 1067, 335 Mo. 113. (3) In an action on a foreign judgment introduced in evidence, a duly certified copy of such foreign judgment makes a prima facie case. Toler v. Coover, supra; Lacy Co. v. National Finance Co., 79 S.W.2d 1078. (4) The assignee of a foreign judgment may sue thereon in his own name. Barker v. Stonebreaker, 34 Mo. 172. (5) The only defenses permissible in this state in an action on a foreign judgment are: Jurisdiction of the subject matter; failure to give legal notice to the defendant; fraud in the concoction of the judgment. Howey v. Howey, 240 S.W. 450, l. c. 457; Lieber v. Lieber, 239 Mo. 49.

J. V. Conran for respondent.

Respondent filed no brief.

SMITH, J. Blair, P. J., and Fulbright, J., concur.

OPINION

SMITH, J.

--The appeal in this case was taken to the Supreme Court, and by that court transferred to this court. [See 145 S.W.2d 142.]

We use part of the language of that court, as follows:

"This is a suit on a foreign judgment. Appellant Hicks requested the trial court to direct a verdict for plaintiff, which was refused. The cause was submitted to a jury, resulting in a verdict for defendant. A new trial was denied and, from the judgment entered, plaintiff appealed.

"The original suit grew out of a car accident in Arkansas. J. P. Hicks, Mrs. J. P. Hicks and Charles Hicks were alleged to have been injured in that collision. They sued La Plant in the Arkansas court under a statute which authorized a joint suit in such cases. The Arkansas statute also authorized service of process on a non-resident defendant, in a case where a cause of action grew out of a collision between cars traveling upon the public highway within the State of Arkansas.

"Judgments were rendered in the Arkansas court against La Plant and in favor of J. P. Hicks in the sum of $ 2,490, in favor of Mrs. J. P. Hicks in the sum of $ 2,000 and in favor of Charles Hicks in the sum of $ 1,250. J. P. Hicks took an assignment of the judgments of Mrs. J. P. Hicks and Charles Hicks. He later filed suit thereon against La Plant, respondent in this case, in the Circuit Court of New Madrid County, Missouri. La Plant filed an answer consisting of a general denial. He also stated in his answer that, prior to the time suit was filed in Arkansas, suits had been filed in the New Madrid County Circuit Court on the same causes of action, which suits were later dismissed and then filed in Arkansas. La Plant alleged in his answer that such action constituted fraud upon the Missouri courts. La Plant also made a plea in his answer to the merits of the cause of action upon which the judgments were based, alleging that he was not liable for the injuries, if any were sustained in the collision. A motion to strike out this defense was overruled by the trial court.

"The count on the judgment in favor of Charles Hicks in the sum of $ 1,250 was dismissed by plaintiff."

The facts out of which the judgment arose are that on the 17th day of November, 1934, J. P. Hicks, in company with his wife son, daughter and Mrs. Parley Davis, his mother-in-law, were driving in a Chevrolet automobile north along highway 61 in Mississippi County in the State of Arkansas. At a point about one mile north of Turrell, Arkansas, the defendant, George La Plant, in company with his daughter, June La Plant, who was doing the driving, was proceeding southward along this same highway No. 61. At the place of the accident it appears that the La Plant car pulled out to the left of the highway in an attempt to pass two or three cars which were in front of it, all proceeding in a southward direction along said highway. At the time the La Plant car turned out to its left to pass around the cars in front of it, the Hicks car was coming north at a speed of approximately forty miles an hour and evidently the driver of the La Plant car did not see the Hicks car approaching from the south. The driver of the Hicks car, in an attempt to avoid a collision, pulled his car to the right until both of his right hand wheels were off of the highway, but the La Plant car had got over so far on its left hand side of the highway that the cars collided. As a result of which, the Hicks car was turned over two and one-half times and finally came to rest in a ditch on the west side of the highway. In this accident Mr. Hicks' daughter was killed, he and his son and his mother-in-law, Mrs. Parley Davis, were all severely injured. The car was a total wreck. George La Plant, the defendant, was a farmer living in New Madrid County, Missouri, and the Hicks were also farmers living in the vicinity of Burdette, Arkansas, which is some thirty-two miles north on Highway 61 where the accident occurred and to which place they were returning at the time of the accident, which occurred about one o'clock p. m. The testimony shows that Hicks first filed suit in New Madrid County, Missouri, against La Plant on this cause of action, but this was afterwards dismissed without prejudice, that is, the suits of J. P. Hicks and Mrs. J. P. Hicks and Charles Hicks. Mrs. Davis also filed suit in New Madrid County and this cause was sent on change of venue to Mississippi County, where it is still pending. After dismissing the suits in New Madrid County by J. P. Hicks, Mrs. J. P. Hicks and Charles Hicks, a suit was filed for the same accident in Mississippi County, Arkansas, under a statute known as Act No. 39, approved February 18, 1933, providing for personal service on nonresident defendants. This Act No. 39, set out in full in the petition, provided generally that where a nonresident owner, chauffeur or operator of a motor vehicle uses the highway of the State of Arkansas, service on such persons may be had under the laws of that state by service of process on the Secretary of State and also mailing to the last known address of the defendant, by registered mail, a copy of the summons and the petition. It is also provided in the State of Arkansas that where different causes of action arise out of the same set of circumstances, they may be united in one petition, and that is what was done in this case. The proof shows that plaintiffs in the Mississippi County, Arkansas, case complied with the statute set forth in Act ...