Hockenberry v. Cooper County State Bank of Bunceton

• Citation: 88 S.W.2d 1031,338 Mo. 31
• Decision Date: 18 December 1935
• Docket Number: 33298
• Parties: Fannie Hockenberry, Executrix of the Last Will and Testament of A. T. Hockenberry, v. Cooper County State Bank of Bunceton, a Corporation, and Cooper County Bank of Bunceton, a Corporation, and O. H. Moberly, as Commissioner of Finance in Possession of Assets and in Charge of the Cooper County State Bank of Bunceton, a Corporation, Appellants
• Court: United States State Supreme Court of Missouri

88 S.W.2d 1031

338 Mo. 31

Fannie Hockenberry, Executrix of the Last Will and Testament of A. T. Hockenberry, v. Cooper County State Bank of Bunceton, a Corporation, and Cooper County Bank of Bunceton, a Corporation, and O. H. Moberly, as Commissioner of Finance in Possession of Assets and in Charge of the Cooper County State Bank of Bunceton, a Corporation, Appellants

No. 33298

Supreme Court of Missouri

December 18, 1935

Appeal from Cooper Circuit Court; Hon. Nike G. Sevier Judge.

Affirmed.

Roy D. Williams, W. W. Carpenter, Jr., and L. O Schaumburg for appellants.

(1) This being an equity suit, the facts are reviewable on appeal and the cause triable de novo, thus constituting the appellate court the final reviewer and trier of the facts as well as the arbiter of equitable principles applicable. Krug v. Bremer, 316 Mo. 891, 292 S.W. 704; Harwood v. Toms, 130 Mo. 225, 32 S.W. 666; Wuelker v. Maxwell, 70 S.W.2d 1100. (2) The presumption is in favor of the verity and validity of the judgment attacked, and of the regularity and validity of the proceedings leading to the rendition of such judgment, and the burden rests upon the party seeking equitable relief against such judgment to establish the alleged fraud in the procurement of such judgment by evidence and proof that is so cogent, clear, strong and convincing as to leave no reasonable doubt of such fraud. Respondent utterly failed to overcome these presumptions and to sustain the burden of proof which rested upon her. Elliott v. McCormick, 19 S.W.2d 659, 323 Mo. 716; 34 C. J., pp. 494, 496; Lieber v. Lieber, 239 Mo. 31, 143 S.W. 467; McDonald v. McDaniel, 242 Mo. 176, 145 S.W. 452; McFadin v. Simms, 309 Mo. 331, 273 S.W. 1050; Reger v. Reger, 316 Mo. 1327, 293 S.W. 414; Wuelker v. Maxwell, 70 S.W.2d 1102; Cantwell v Johnson, 236 Mo. 575. The Probate Court of Cooper County, Missouri, in rendering its judgment, which was not appealed from, acted upon a matter within its jurisdiction, and final judgments of probate courts in such matters are as conclusive as those of courts of general jurisdiction. Covington v. Chamblin, 156 Mo. 587; Moody v. Peyton, 135 Mo. 482. (3) It is settled law that in order to set aside a judgment for fraud, even in a direct proceeding, it must appear that fraud was practiced in the very act of obtaining the judgment. Respondent made no such proof. Lieber v. Lieber, 239 Mo. 50; Payne v. O'Shea, 84 Mo. 129; Murphy v. De France, 105 Mo. 53; Oxley Stove Co. v. Butler Co., 121 Mo. 614; Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 1; Lewis v. Williams, 54 Mo. 200; Murphy v. De France, 101 Mo. 151. (4) The fraud must be of such a nature as to mislead or deceive the court which entered the judgment. Doud v. Lockett, 215 S.W. 770; Peeters v. Schultz, 254 S.W. 182, 300 Mo. 324. (5) The evidence disclosed that respondent was acquainted with all the material facts which formed the basis of appellants' claim against the estate of A. T. Hockenberry, deceased. But, even if the contrary had been made to appear, the judgment cannot be set aside because of respondent's ignorance of any facts, nor on account of negligence on the part of respondent, nor even if she had a meritorious defense to the demand upon which the probate court rendered judgment. Hamilton v. McLean, 68 S.W. 930, 169 Mo. 51; Carolus v. Koch, 72 Mo. 645; Bunn v. Lindsay, 95 Mo. 260; Lieber v. Lieber, 239 Mo. 1; Hamilton v. McLean, 139 Mo. 678; United States v. Throckmorton, 98 U.S. 61; Murphy v. De France, 101 Mo. 151; Cantwell v. Johnson, 236 Mo. 575. (6) And a court of equity, in the absence of fraud in the procurement of the judgment, will not interfere with a judgment at law even on a showing that such judgment is erroneous. Corley v. McKeag, 57 Mo.App. 415; Cases under Point 5. (7) It was incumbent upon plaintiff, in addition to the requirement to allege and to prove fraud in the procurement of the judgment sought to be set aside, to also allege and to prove a valid and subsisting defense to the claim on which appellants obtained judgment in the probate court. Plaintiff did allege in her amended petition that the instrument presented to plaintiff (which was the demand against the estate) was not a valid and binding contract of guaranty and did not bind plaintiff to pay any money to appellants and that said instruments were null and void and of no effect and that plaintiff had and has a good defense to any claim presented against said estate by appellants. Respondents neither pleaded nor proved a defense to the claim upon which appellants obtained judgment in the probate court, and which the lower court set aside. Sauer v. City of Kansas, 69 Mo. 46; Greenard v. Isaacson, 220 S.W. 694; Steyermark v. Landau, 121 Mo.App. 406, 99 S.W. 41. (8) Appellants deny that the claim forming the basis for the judgment under attack in this proceeding could have been successfully defended. However, even if the contrary be true, the merits of that controversy are res adjudicata, and the same can form no basis in this independent action in equity to set aside the judgment. Murphy v. De France, 101 Mo. 151; Smith v. Sims, 77 Mo. 269; Corley v. McKeag, 57 Mo.App. 418; Yantis v. Burdett, 4 Mo. 4; Lieber v. Lieber, 239 Mo. 32; Wabash Railroad Co. v. Mirrielees, 182 Mo. 126; Cases under Point 5.

Dorsey W. Shackelford and Clark, Boggs, Peterson & Becker for respondent.

(1) The claimants, Cooper County Bank and the Cooper County State Bank, were guilty of practicing actual fraud upon respondent in the procurement of the judgment of the probate court. Security Savs. Bank v. Kellems, 321 Mo. 1, 9 S.W.2d 967; 26 C. J. 1076, sec. 18; 12 R. C. L. 311, sec. 72; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121. (2) The action of the trial court in setting aside the judgment should be affirmed because the probate court was without jurisdiction to render the judgment. (a) An executrix has no power to authorize a confession of judgment in demands exceeding one hundred dollars. State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 646; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Secs. 187, 195, 198, R. S. 1929; First Natl. Bank v. White, 220 Mo. 717; State ex rel. Robbins v. Giddeon, 77 S.W.2d 647; Home Ins. Co. v. Wickham, 281 Mo. 300, 219 S.W. 961. (b) No waiver of notice required by Section 195, Revised Statutes 1929, was procured and therefore the probate court was without jurisdiction to render this judgment. Secs. 195, 197, R. S. 1929; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Curtis v. LaForce, 29 S.W.2d 191; State ex rel. Continental Ins. Co. v. Becker, 77 S.W.2d 100; Schwab v. Brotherhood of American Yeomen, 305 Mo. 155, 264 S.W. 690; 67 C. J. 289, sec. 1. (c) No hearing required by Section 198, Revised Statutes 1929, was held. Sec. 198, R. S. 1929; In re Graves' Estate, 73 S.W.2d 844; State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 646; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Robison v. Floesch Construction Co., 291 Mo. 34, 236 S.W. 332, 20 A. L. R. 1239; Gurley v. St. Louis Transit Co., 259 S.W. 895; Barrie v. United Rys. Co., 125 Mo.App. 96; Neff v. City of Cameron, 213 Mo. 350; Fenn v. Dugdale, 40 Mo. 63. (3) Respondent made ample showing upon the issue of meritorious defense. Crow v. Crow-Humphrey, 73 S.W.2d 807; Greenard v. Isaacson, 220 S.W. 694; Dunham v. Hinton, 58 S.W.2d 439; Mechanics Am. Natl. Bank v. Rowell, 182 S.W. 989; Rawleigh Medical Co. v. Modde, 209 S.W. 958; Tandy v. Livestock Co., 113 Mo.App. 409; Harrington's Admr. v. Crawford, 136 Mo. 467; Jobes v. Miller, 209 S.W. 549, 201 Mo.App. 45; State ex rel. Union El. L. & P. Co. v. Pub. Serv. Comm., 333 Mo. 426, 62 S.W.2d 742. (4) The trial court did not err in admitting plaintiff's Exhibit M and Exhibit P. Sec. 5290, R. S. 1929; Galli v. Wells, 209 Mo.App. 460, 239 S.W. 894; In re Millspaugh, 307 Mo. 185, 270 S.W. 110; Ex parte French, 315 Mo. 75, 285 S.W. 513; Span v. Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; Lowe v. Montgomery, 321 Mo. 330, 11 S.W.2d 41.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is a suit in equity to set aside a judgment of the Probate Court of Cooper County, in favor of the two defendant banks for $ 82,316.81, upon a demand against the estate of A. T. Hockenberry, deceased, upon the ground that said judgment was procured by fraud. The trial court found for plaintiff and entered a decree setting the judgment aside. The defendant banks, now in possession of the State Commissioner of Finance for liquidation, have appealed from this decree.

Since this case is in equity, it is considered de novo on appeal in this court, but we usually defer to the findings of the chancellor who has heard conflicting oral testimony and passed upon the credibility of witnesses in reaching his conclusions. [Barlow v. Scott (Mo.), 85 S.W.2d 504, and cases cited.] In order to determine whether the chancellor's findings were warranted, we will state the admitted facts and the evidence which, if true, would support them. The judgment sought to be set aside was, as follows:

"Now on this day the administratrix of said estate having duly waived in writing for allowance the claim of the Cooper County State Bank and the Cooper County Bank duly verified by their affidavit being a note for $ 82,316.81, the Court having heard the evidence does allow said demand against the estate for the sum of $ 82,316.81, and it is hereby assigned to the 6th class with interest at six per cent."

Mr. A T. Hockenberry, plaintiff's deceased husband, was a member of the board of directors of the Bank of Bunceton in April, 1928. By a resolution of this board on April 17, 1928, the officers of this bank were authorized to execute a contract for the sale...