Hunter v. Wabash Ry. Co.

Decision Date07 July 1910
Citation130 S.W. 103,149 Mo. App. 243
PartiesHUNTER v. WABASH RY. CO.
CourtMissouri Court of Appeals

Action by Miner Hunter against the Wabash Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action upon judgment rendered by the circuit court of Warren county, Mo., on November 24, 1902, for the sum of $5,000 on account of personal injuries sustained by plaintiff.

Plaintiff alleged in his petition the procurement of the judgment; that said cause had been appealed to the Supreme Court, the appeal dismissed by the Supreme Court, on which the judgment of the circuit court became final; and that it had not been paid. The defendant, by answer, admitted the judgment had been procured against it, and as defense alleged that it had been satisfied on December 13, 1902, by the plaintiff by what is called a "satisfaction piece" attached to the margin of the record of the judgment. For a further defense, alleged that defendant relied upon this satisfaction, and by reason thereof abandoned its appeal in the Supreme Court, and for that reason plaintiff is now estopped from enforcing payment of this judgment. Further alleged that the original judgment on which this suit was brought was procured by the perjured testimony of plaintiff, and, for that reason, recovery thereon should not now be permitted. Replication was a general denial. There was trial by the court, finding and judgment for plaintiff, and defendant has appealed.

The "satisfaction piece" attached to the margin of the record of the judgment is as follows:

"To R. N. Chiles, Clerk of Circuit Court, Warren County, Missouri: I hereby acknowledge satisfaction in full of the judgment obtained by me in the case of Miner Hunter against the Wabash Railroad Company in Warren circuit court ____ day of November, 1902, the same having been obtained by me on perjured testimony. You are hereby authorized to make this entry on the record. Signed in duplicate. Given this 13 day of December, 1902.

                                              his
                                       "Miner x Hunter
                                             mark
                

"Witnesses to signature: F. A. Ordelheide, J. George Polster, W. L. Morsey."

The plaintiff at the same time executed a stipulation for the Supreme Court to reverse the judgment, as follows:

                     "Stipulation to Reverse Judgment
                

"In the Supreme Court of Missouri, April Term, A. D. 1903, Miner Hunter, Respondent, v. Wabash Railroad Co., Appellant. It is hereby stipulated by and between the parties hereto, the respondent for himself and appellant by his attorney of record, as follows, to wit: In consideration of the satisfaction of the judgment below by the respondent here on the court records, in Warren county, Missouri, as provided by law, said judgment having been obtained by perjury, the respondent and appellant hereby agree that an entry may be made in this court reversing said judgment and satisfying the same in accordance with the record entry now on file in the court below.

                              his
                        "Miner x Hunter, Respondent
                             mark
                        "C. E. Peers, Attorney for Appellant
                

"Witnesses to signature: F. A. Ordelheide, J. George Polster, W. L. Morsey."

Indorsed on the stipulation: "Filed and denied December 24, 1902."

As to how the plaintiff came to sign this satisfaction and stipulation the testimony is conflicting. In the trial of the damage suit the attorneys representing the plaintiff were J. B. Garber, who then lived at Warrenton, and was prosecuting attorney of the county, McShane & Goodwin, who lived at St. Louis, and H. W. Johnson. On the 13th of December following the rendition of the judgment on November 24th, M. C. Kempf, a railroad detective then in the employ of defendant, appeared in Warrenton, and after a conversation with Garber, Garber sent for plaintiff, Hunter, and had him brought to his office. He introduced Hunter to Kempf. Kempf then began to ply him with questions relating to his judgment against the company and his testimony on the trial, and after 15 or 20 minutes of sweating by Kempf plaintiff asked Garber if he might see him outside the room. Garber consented, went out in the hall, and his testimony of what occurred at that time is as follows: That Hunter said to him, "Mr. Garber, what would become of me if I was to tell you the truth about this?" Garber says that he then replied: "My God, Miner! Haven't you told me the truth of this matter?" Hunter said: "No, I didn't. I didn't have any ticket." Witness then states that he was dumbfounded at this statement, turned around, went back into the room, and sat down. Hunter followed him in, and, after a further conversation between Hunter and Kempf, that Hunter made the statement to Kempf that he did not have a ticket at the time of the accident for which he had procured the judgment, and that then this "satisfaction piece" was signed by plaintiff Hunter, and also the stipulation that the cause might be reversed by the Supreme Court.

The plaintiff's version of what took place in Garber's office and the conversation between himself and Garber in the hall was, in substance, as follows: That on going to Garber's office Garber introduced him to Kempf, the detective, and that Peers, attorney for defendant, was also present, and that Peers said to him, "Miner, I want you to tell a different story so they get the $5,000 back for the railroad company." Plaintiff said, "I have told you I have told the truth." Peers then said: "Lock up the G___ d___ negro. He has been lying long enough." Garber said, "Wait and let us see what he has to say." Then Peers left. After Peers left, Kempf said: "Miner, no use to be lying, for I have found out every ticket sold that day. You never bought a round-trip ticket for this ride. You have been lying long enough." Witness then asked Garber to step outside a minute. This Garber did, and witness said: "What shall I do about this? I have done told the truth." Garber replied, "The best thing for you to do to keep me out of trouble, Garber, McShane, and Goodwin, is to tell a different story." Witness said, "What are you going to do with me?" Garber said, "Nothing." Witness said, "Will you prosecute me?" He said, "No, you tell this story." Witness then went back inside and told Kempf that he was...

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25 cases
  • In re Franz Estate, 36276.
    • United States
    • Missouri Supreme Court
    • 20 Abril 1939
    ... ... Hunter v. Wabash Ry. Co., 149 Mo. App. 252; Cremer v. May, 8 S.W. (2d) 115. (4) An attorney employed by his client to represent the latter in litigation has ... ...
  • In re Franz' Estate
    • United States
    • Missouri Supreme Court
    • 20 Abril 1939
    ... ... must be established by clear and convincing testimony and the ... burden of proof is upon the party seeking to establish the ... gift. Hunter v. Wabash Ry. Co., 149 Mo.App. 252; ... Cremer v. May, 8 S.W.2d 115. (4) An attorney ... employed by his client to represent the latter in ... ...
  • City of Brookfield v. McCollum
    • United States
    • Missouri Supreme Court
    • 9 Abril 1928
    ... ... Bank of Commerce v. Hoeber, 88 Mo. 37; Hunter v. Wabash Ry. Co., 149 Mo. App. 243; Hedrick v. Beeler, 110 Mo. 91; 6 C.J. sec. 114. (3) Knowledge of the alteration of the bond in the approving ... ...
  • Guthrie v. Crews
    • United States
    • Missouri Supreme Court
    • 5 Marzo 1921
    ... ... delivered the same to Robert N. Crews. Upon his acceptance ... thereof, the gift was consummated and became conclusive ... between them. [Hunter v. Wabash [286 Mo. 453] Railroad, 149 ... Mo.App. 243; Meyer v. Koehring, 129 Mo. 15, 31 S.W ... 449.] And, plaintiffs having introduced no ... ...
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