In re Thomasson's Estate

• Decision Date: 08 July 1946
• Docket Number: 39722
• Parties: In the Matter of the Estate of Hugh W. Thomasson, Deceased: R. Shad Bennett, Claimant, Appellant, v. Boatmen's National Bank, Executor of the Estate of Hugh W. Thomasson, Deceased
• Court: Missouri Supreme Court

196 S.W.2d 155

355 Mo. 274

In the Matter of the Estate of Hugh W. Thomasson, Deceased: R. Shad Bennett, Claimant, Appellant, v. Boatmen's National Bank, Executor of the Estate of Hugh W. Thomasson, Deceased

No. 39722

Supreme Court of Missouri

July 8, 1946

Motion for Rehearing or to Transfer to Banc Overruled September 9 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

R Shad Bennett, pro se, and Philip A. Foley for appellant.

(1) On appeal from the probate court the circuit court acquires jurisdiction only of the issues shown by the record to have been pleaded and tried in the probate court, and where the record shows no pleading or affirmative defense on behalf of the defendant in the probate court, the defendant on a trial de novo is limited to a plea of the general issue, and it is error for the circuit court in a trial de novo in such cases to permit the defendant to plead or offer evidence in support of an affirmative defense. Turley, 164 S.W.2d l.c. 173; Shelton's Estate, 93 S.W.2d l.c. 689; Harr & Harr's Estate, 22 S.W.2d l.c. 214; Meffert v. Lawson, 287 S.W. l.c. 611; Smith v. Collins, 243 S.W. 219. (2) In order for a judgment to be available as a bar or estoppel it must appear from the record of the prior suit that the particular controversy sought to be concluded was necessarily tried and determined. Steam Gauge & Lantern Co. v. Meyrose, 27 F. 213. (3) To constitute res adjudicata a judgment must meet the following conditions: (a) Identity of causes of action; (b) Identity of things sued for; (c) Identity of parties; (d) Identity of quality of the person for or against whom the claim is made. Rossi v. Davis, 345 Mo. 362, 137 S.W.2d l.c. 373, 125 A.L.R. 1111. (4) The judgment must foreclose the matter in issue, to-wit, that matter upon which the plaintiff proceeds by his action and which the defendant controverts by his pleading. U.S.F. & G. Co. v. McCarthy, 33 F.2d 7, 70 A.L.R. 1447. (5) A judgment is not res adjudicata as to any fact decided in the former action which it was not necessary to plead and prove. Crnic v. Croatian Fraternal Union, 66 S.W.2d 161. (6) One may not decide issues by injecting unnecessary allegations into a suit for the purpose of pleading res adjudicata when such issues become vital in a different proceeding. Scheer v. Trust Co. of St. Louis, 49 S.W.2d l.c. 143. (7) Matters which were only collaterally in issue and were not essential to the primary purpose of the former judgment are not res adjudicata and do not constitute estoppel or a bar to the second proceeding. Rhoads v. Rhoads, 119 S.W.2d 247, 342 Mo. 934; Rhodus v. Gately, 147 S.W.2d 631, 347 Mo. 397. (8) Estoppel does not extend to matters not expressly adjudicated except where there are necessary and inevitable inferences. Sonken-Galamba Corp. v. Atchison, T. & S.F. Ry. Co., 124 F.Supp. 952. (9) In order for a judgment to constitute res adjudicata or estoppel it must be between the same parties in the same capacities or their privies. Kirk v. Metropolitan Life Ins. Co., 38 S.W.2d 519, 225 Mo.App. 756. (10) Even where this Honorable Court sustains two of three counts on which a judgment was founded and grants a new trial as to one; and all of said counts had been defended on the ground of fraud, conspiracy and lack of good faith, the jury must pass again on the same defenses as to the count on which a new trial has been granted. Laughlin's Extrix. v. Boatmen's Natl. Bank, 189 S.W.2d 974. (11) If a judgment does not bind both parties it binds neither. It must be completely mutual. Stewart v. City of Springfield, 165 S.W.2d 624, 350 Mo. 234.

Franklin E. Reagan and Lehmann & Allen for respondent.

(1) Claims presented to the probate court and circuit court on appeal therefrom are triable without formal pleading and no written answer is required. The practice is to state orally to the court and jury what defenses the executor relies on. Where there is no written answer, the defendant is deemed to tender the general issue at common law; in this situation evidence is admissible on any affirmative defense tending to defeat the whole claim, including the defenses of fraud and res adjudicata. On appeal from the probate court, the trial of the claim in the circuit court is de novo and any defenses to the claim may be made in the circuit court whether made in the probate court or not, excepting a counterclaim. The appellant having agreed in the probate court that the claim be disposed of without a trial so that the case might be promptly appealed to the circuit court cannot complain of any lack of defenses raised in the probate court. Secs. 191 and 197, R.S. 1939; Kelley's "Missouri Probate Law and Practice," sec. 253; Fenn v. Reber, 153 Mo.App. 219; In re Mean's Estate, 284 S.W. 186; Hinshaw v. Warren, 167 Mo.App. 365, 151 S.W. 497; Hall v. Greenwell, 85 S.W.2d 150, 231 Mo. 1093; Peper Automobile Co. v. St. Louis Union Trust Co., 186 S.W. 109; Markowitz v. Markowitz, 290 S.W. 119. (2) Where the admitted facts proved by claimant's own testimony in the case establish a defense, it is the duty of the trial court to direct the verdict for the defendant. State ex rel. v. Holtkamp, 330 Mo. 608, 51 S.W.2d 13; State ex rel. v. Mueller, 330 Mo. 641, 51 S.W.2d 8; State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; Laughlin v. Boatmen's Natl. Bank of St. Louis, 163 S.W.2d 761; Canons of Ethics, Rule, 4.06; Rogers v. Boatmen's Natl. Bank, 346 Mo. 911, 144 S.W.2d 79. (3) According to the undisputed testimony, principally from Bennett himself, he did not proceed with undivided fidelity in the defense of Thomasson and, therefore, he cannot recover for his services or for any services or any expenditures in connection with that proceeding. Laughlin v. Boatmen's Natl. Bank of St. Louis, 163 S.W.2d 761; Canons of Ethics, Rule 4.06. (4) The services, if any were rendered by the appellant in the defense of the insanity proceeding for which he seeks recovery for compensation, were an effort to fraudulently defeat the jurisdiction of the probate and circuit courts and the appellant cannot recover for those services for that reason. Canons of Ethics, Rules 4.15, 4.16; Hays v. Hays, 221 Mo.App. 516, 282 S.W. 57; Wagoner v. Wagoner, 287 Mo. 567, 229 S.W. 1064; Coffey v. Coffey, 71 S.W.2d 141; Boatmen's Natl. Bank of St. Louis v. Wurdeman, 344 Mo. 573, 127 S.W.2d 438. (5) The judgment in the title suit is res adjudicata as to all matters decided therein by reason of the privity between the plaintiff in that case and the defendant in this. (6) The findings of the court in the title suit decree are determinative of the appellant's right to recover in this case, both for services and for the advancements. Moody v. Peyton, 135 Mo. 482, 36 S.W. 621; In re Flynn's Estate, 95 S.W.2d 1208, 232 Mo.App. 297; Restatement of the Law of Judgments, Sec. 85 (2) and Comment (j); Kirk v. Metropolitan Life Ins. Co., 38 S.W.2d 519; St. Louis Natl. Bank v. Field, 156 Mo. 306, 56 S.W. 1095; Kane v. McMenamy, 307 Mo. 98, 270 S.W. 662; McIntosh v. Wiggins, 191 S.W.2d 637. (7) Under the weight of the evidence the judgment was for the right party and will not be disturbed. New Code of Civil Procedure, Sec. 140(b); Lamar Water Co. v. City of Lamar, 140 Mo. 145.

Bohling, C. Westhues, C., absent; Barrett, C., concurs.

OPINION

BOHLING

This review involves the demand of R. Shad Bennett against the estate of Hugh W. Thomasson, deceased (Boatmen's National Bank, as executor of said estate), claiming $ 20,000 for legal services rendered and $ 500 for moneys advanced. A record entry of March 1, 1943, shows the exhibition of the demand, the appearance of the parties and that "on consent of the parties" the demand was dismissed. An amended order of April 2, 1943, recites the appearance of the parties and: "whereupon the court orders that said claim be and the same is hereby dismissed." Claimant appealed. In the circuit court the jury returned a verdict May 23, 1945, in favor of the claimant in the sum of $ 13,900 for services; for $ 128 moneys advanced Dr. W. R. Dupree; for $ 100 for moneys advanced Randolph Laughlin, and $ 20 for moneys advanced Thomasson. This judgment was set aside on defendant's motion for a judgment in accord with its motion for a directed verdict or, in the alternative, for a new trial, and a judgment was entered in favor of claimant for only the $ 20 advanced to Thomasson. Claimant perfected an appeal to this court. He contends the only question is the effect of a judgment in a former case under which the court acted, stating the defense of res adjudicata was not available because: 1st, there being no showing of any pleading or affirmative defense on behalf of defendant in the probate court, the plea of res judicata could not be urged in the circuit court; and, 2nd, the judgment relied upon was not res judicata of the issues in controversy between claimant and this defendant.

Probate courts may "hear and determine all demands in a summary way without the form of pleading" (R.S. 1939, Sec. 197) and circuit courts, upon appeal, "hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the probate court" (Id., Sec. 291).

Claimant's cases involved exceptions to final settlements. Re Turley (Mo. App.), 164 S.W. 2d 169, 173[4, 5] and cases there cited. They are distinguishable in that the filing of written exceptions to improper items in settlements is the practice adopted to indicate the controverted matters for determination in the probate court and, upon appeal, in the circuit court. See Re Mills' Estate, 349 Mo. 611, 616, 162 S.W. 2d 807, 810[2-7].

Demands against the estates of decedents are required to be exhibited and the demand thus exhibited determines...