Hoverstock v. Rogers
| Decision Date | 24 February 1914 |
| Parties | JESSIE WRIGHTSMAN HOVERSTOCK et al., Appellants, v. JOHN C. ROGERS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Christian County Circuit Court.--Hon. John T. White Special Judge.
AFFIRMED.
Judgment affirmed.
J. P McCammon for appellants.
(1) It is the general rule that a question arising on a former appeal will be deemed res adjudicata only when it must have been fairly presented to the court as necessary to a decision of the case and directly considered and decided. Ables v Ackley, 133 Mo.App. 594, 113 S.W. 698; Railroad v. Swan, 120 Mo. 36-7; Anderson Carriage Co. v. Gilmore, 129 Mo.App. 647, 108 S.W. 594; Gwin v. Waggoner, 116 Mo. l. c. 152. (2) As no inquiry had been directed to the issue as to what amount was due on the $ 1350 note, "it was not a part of the court's meaning or intention that the trial court should ascertain" the whole "amount to be due defendant if in point of fact nothing was due." Wing v. Life Ins. Co., 166 Mo.App. 731, 150 S.W. 1120.
G. A. Watson for respondent.
(1) The first error assigned is the admission of the judgment rendered in case of John C. Rogers v. Barbara A. Wrightsman. The $ 1350 was merged in the judgment and this judgment was not only best evidence but was the only evidence admissible to prove the indebtedness. 2 Daniel Negotiable Instruments secs. 1283-4; Barber v. Baker, 70 Mo.App. 680; Pickel Stone Co. v. Wall, 108 Mo.App. 495; Wycoff v. Epworth, 146 Mo.App. 554; Roth Tool Co. v. Camp Spring Co., 146 Mo.App. 1; Crim v. Crim, 162 Mo. 544. (2) The liability of appellants is not fixed by the judgment of the circuit court of Greene county, but by the decree of the Supreme Court in their own case. Wrightsman v. Rogers, 239 Mo. 417.
This case is a consolidation of two cases, former appeals in which are reported in 239 Mo. 417, 144 S.W. 479, under the title of Wrightsman v. Rogers, and in 239 Mo. 430, 144 S.W. 483, Hoverstock v. Rogers. Facts not necessary to be repeated will be found in such former opinions. The object of these suits originally was to have the court declare a resulting trust in favor of plaintiffs in certain real estate, a hotel in Ozark, Missouri ,the legal title of which was then in the defendant but formerly in plaintiffs' mother. The Supreme Court held that under the evidence, reviewed by it in an equity case, each of the two plaintiffs was the owner of a two-ninths interest in said hotel property by reason of having furnished that proportion of the purchase price, but that a certain note for $ 1350, held by defendant, was a valid first lien on the whole of said property; that plaintiffs' mother, who signed such note and who then equitably only owned three-ninths of said property, was the principal debtor for said amount and that plaintiffs and their sister were in equity her sureties. The cases were reversed and remanded with directions to have the property sold, for an accounting of rents and profits and to pay the amount due on said note out of the mother's interest, if sufficient, and, if not sufficient, to pay the balance pro rata out of the interests of the plaintiffs and their sister.
It is stated by appellants here, and not denied by respondent, that after the cases were so remanded with directions, the property sold for $ 3125, though the record shows nothing as to any sale, how, or by what authority, made or what it sold for. It is further admitted that the $ 1350 note in question, without any credit being allowed thereon, amounted to more than the property sold for. The defendant, therefore, contented himself by making to the court an accounting of the rents received, less the insurance, taxes, repairs, etc., showing a total received of $ 2050 and a total paid out of $ 2300, leaving the property indebted to him for $ 250. The correctness of this accounting is not questioned. On this showing nothing was due plaintiffs. The trial court so found.
The plaintiffs then put in evidence "the files in the suit," showing that in January, 1907, and while these cases were pending in the Supreme Court, the defendant had reduced his note for $ 1350 to judgment against plaintiffs' mother, whom the Supreme Court held to be the principal debtor, together with another note given by the mother to him, the total judgment being for $ 2530. The petition and judgment in that case shows that the amount due on the note for $ 1350, here involved, was $ 2140, and on the other note $ 390, making the judgment, as stated, $ 2530, with costs taxed at $ 12.30. It was also shown that there was realized on executions issued on this judgment, after allowing the mother her exemption of $ 300, the sum of $ 331.90, As this is less than the amount due on the other note sued on at the same time and merged in the judgment on the note for $ 1350, we see no advantage gained by plaintiffs by putting in this evidence, though granting that plaintiffs are entitled to show payments made on this $ 1350 note adjudged by the Supreme Court to be a valid lien on the hotel property. On this showing plaintiffs were not entitled to anything.
The other evidence for plaintiffs at this trial consists of short extracts taken from the evidence introduced at the former trials and which was before the Supreme Court on the former appeals. It is claimed that this evidence shows that certain credits should be given on this $ 1350 note and that thereby the amount due would be so reduced as to leave a balance due these plaintiffs. The trial judge found against this contention.
It will be conceded, or ought to be, that any question arising on the former appeals which was fairly presented to the court and which was necessary to a decision of the case and was in fact then decided is res judicata and binding on the trial court and this court. [Gwin v. Waggoner, 116 Mo. 143, 151, 22 S.W. 710; Hinzeman v. Railroad, 199 Mo. 56, 94 S.W. 973; Ables v. Ackley, 133 Mo.App. 594, 113 S.W. 698.] And this is especially true and allows no opening up of old issues when a case is reversed and remanded with directions to do certain things. [State ex rel. v. Anthony, 65 Mo.App. 543, 551; Shroyer v. Nickell, 67 Mo. 589; Scullin v. Railroad, 192 Mo. 6, 90 S.W. 1028; State ex rel. v. Edwards, 144 Mo. 467, 46 S.W. 160.]
In the former trial plaintiffs were seeking to impress the land in controversy with a resulting trust in their favor, based on the fact of their having paid, through their guardian, a part of the purchase price of this hotel property. It was the very gist of their action to determine the amount each party so paid. Plaintiffs claimed they had each paid one-fourth. The Supreme Court found that of the purchase...
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