Jackson v. Cunningham

• Decision Date: 24 December 1887
• Parties: WILLIAM JACKSON, Respondent, v. WILLIAM R. CUNNINGHAM, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 354

WILLIAM JACKSON, Respondent, v. WILLIAM R. CUNNINGHAM, Appellant.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

APPEAL from Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action of replevin begun before a justice of the peace for the recovery of the possession of two horses. The defendant claimed the property under a mortgage with a power of sale, in the usual form, executed by the plaintiff to secure the payment of a promissory note made by the plaintiff, payable to the order of James Bumgarner, and assigned by said payee to the defendant. From a judgment by the justice of the peace in favor of plaintiff, the defendant appealed to the circuit court. The plaintiff admitted the execution of the note and mortgage, and the assignment to the defendant. The defendant took possession of the property under the mortgage after an alleged forfeiture. Against the right of the defendant to the property under said mortgage the plaintiff made two claims. The first claim was, that the plaintiff, in pursuance of an agreement between him and the defendant, at the time of the assignment of the note to the latter, had paid the note in full with corn before the defendant took possession of the property. The second claim originated out of this state of facts: On the day that the defendant took possession of the property, he also instituted a suit before a justice of the peace on an account made up of several small sums of money paid by the defendant for the plaintiff, and a certain sum alleged to be due defendant on a settlement of June, 1886. The total amount of the account was $40.52, and this was reduced, by a credit given therein, to the balance claimed, $33.77. To said account the plaintiff filed a setoff in the shape of an account, the various items of which amounted to $163.80, which amount was reduced by various credits stated in the said account to the balance claimed, $39.40. One of the credits was as follows: " By cash paid J. H. Bumgarner, $35.00." On a trial of said suit the defendant in this case, the plaintiff in that suit disclaimed the credit just mentioned. That suit resulted in a judgment in favor of the plaintiff therein, the verdict being as follows:

" We the undersigned jury find the difference for the plaintiff eleven dollars, 82 cents ($11.82)."

B. F THAYER, Foreman."

From that judgment no appeal was taken, and the defendant therein who is the plaintiff here, paid it in full before beginning this action. Upon such facts is based the plaintiff's second claim, to which reference has been made, viz., " a former adjudication of the amount and indebtedness and interest specified in said note, and a full settlement of the same in a former suit between plaintiff and defendant."

From a judgment against him the defendant has appealed to this court.

WALLACE & CHILES, for the appellant.

I. The court below erred in permitting plaintiff to read in evidence to the jury the docket entries and papers in the suit of W R. Cunningham against William Jackson, tried before J. J. Browning, justice of the peace, August 20, 1886, including the account sued on by plaintiff therein, and offset and counter-claim of defendant therein, verdict and judgment, against the objection of defendant that the same were irrelevant, incompetent, and immaterial. There is nothing in such docket entries and papers that show, even prima facie, that the right of defendant to the possession of the horse and mare sued for in this case, was involved in the issues, or was passed upon or adjudicated in such former suit. And the court below manifestly erred in refusing to permit witness, Asa Tracy, who was a juror on the trial of said action of W. R. Cunningham against William Jackson before justice Browning, August 20, 1886, to answer the question propounded to him by defendant. Parol evidence may be received for the purpose of showing whether a question was determined in a former suit. Lightfoot v. Wilmot, 23 Mo.App. 5; Hickerson v. City of Mexico, 58 Mo. 61; Freeman on Judgments [2 Ed.] sect. 273; Smith v. Talbot, 11 Ark. 666; Bell v. Hoagland, 15 Mo. 360. Res adjudicata only applies to that which was directly in issue. Ridgely v. Stillwell, 27 Mo. 132. And which was material and traversable. Greenl. Evid. [4 Ed.] sect. 528. " Not to any matter to be inferred by argument from the judgment." Greenl. Evid., supra; Clemens v. Murphy, 40 Mo. 121, 128; Wright v. Salisbury, 46 Mo. 26. The court in former suit must have had jurisdiction. Wright v. Salisbury, 46 Mo. 29; Wells v. Moore, 49 Mo. 229; Spradling v. Conway, 51 Mo. 51, 54; Burnes v. Railroad, 71 Mo. 163; Miles v. Walther, 3 Mo.App. 96. Res adjudicata does not apply, unless parties to former suits were adversary parties. The item, " By cash paid J. H. Bumgarner, $35," was a credit given by defendant, Wm. Jackson, in his offset in that suit, not claimed, but " ‘ disclaimed" by Cunningham. McMahan v. Geiger, 73 Mo. 145, 149; Packet Co. v. Sickle, 24 How. [U. S.] 333; Dana v. Tucker, 4 Johns. 477, 480; State v. Baker, 20 Mo. 338; State v. Brewer, 8 Mo. 373-4; Wood v. Jackson, 8 Wend. 36; Lawrence v. Hunt, 10 Wend. 85, 86; Packet Co. v. Sickles, 5 Wall 580, 587, 598, 599.

II. The court below erred in giving to the jury the instructions numbered one, two, three, four, and five on the part of the plaintiff. (1) There was no evidence to warrant said first instruction. Defendant had possession of said horses under the chattel mortgage executed by plaintiff, Jackson, after default in the payment of the debt. (2) There was no evidence to warrant said second instruction. There is no evidence that " said note" had been paid in corn, or that the amount of " said note" was passed upon and adjudicated in the suit of W. R. Cunningham against William Jackson, tried by said Browning, justice of the peace. " Said note" was not named or mentioned either in the account, setoff, or evidence in said suit. The " amount" due on the note, secured by the chattel mortgage, at the time of the trial before said justice, was over forty dollars, so the item, " By cash paid J. H. Bumgarner, $35," did not represent " said note," or the " amount" thereof; and plaintiff offered no evidence in this case to show that said thirty-five dollar item, represented either " said note" or the " amount" thereof; and such instruction is also in the alternative, and inconsistent with itself. (3) There was no evidence to warrant said third instruction. There was no evidence, on the trial of this cause, that plaintiff, in his " offset," in such former suit, gave defendant " credit for the amount of said note and interest then due" thereon. And there was no evidence, on this trial, that " evidence was offered or heard before said justice," in relation to the item of thirty-five dollars, as the " value of said note." And there was no evidence on the trial of this cause that the jury before said justice " returned a verdict in favor of the defendant herein, for the sum of eleven and 82/100 dollars, the difference between plaintiff and defendant, including all said items." (4) There was no evidence to warrant said fourth instruction, in this, that there was no evidence on the trial of this cause, " that one of the items of the plaintiff's said setoff was the ‘ Bumgarner note," nor any evidence that the " thirty-five dollar item in said setoff," " represented" the " Bumgarner note." (5) Said fifth instruction of plaintiff's is erroneous, in selecting out and calling the attention of the jury to part of the evidence in this cause, to-wit, the " docket entries" of said justice, Browning; and the " pleadings and papers filed in such suit" before him, including the " verdict of the jury and judgment thereon," and telling the jury that they are " evidence in this cause." And besides, there was no evidence to warrant said fifth instruction, in this, that there was no evidence on this trial, that " plaintiff in his offset filed before said justice gave the defendant herein credit for the amount of said note and interest due at the time." And said fifth instruction is erroneous in telling the jury that the " burden of proof is upon the defendant in this suit to show by a preponderance of the evidence that said item relating to or representing said note was not considered and passed on by the jury." By the authorities, the burden of proof was on plaintiff to show that such item was passed on, and also that it related to and represented " said note," which he did not do. (6) And the instructions of plaintiff are inconsistent with, and contradictory of, those given for defendant, and misleading to the jury. Doty v. Steinberg, 25 Mo.App. 328; State v. Clevenger, 25 Mo.App. 653."

III. The court below erred in refusing instruction numbered four, asked for by defendant, for the reasons and on the authorities cited in point I. of this brief. Also in refusing instruction numbered six, asked for by defendant. The evidence failed to show that the right of defendant to the possession of the horse and mare was involved in, or passed on, or adjudicated in the former suit before justice Browning.

IV. The court below erred in overruling the motion of defendant for a new trial. The verdict of the jury is contrary to and against the evidence, and against the law of the case, as given by the court to defendant. Hewett v. Doherty, 25 Mo.App. 326; Doty v. Steinberg, supra.

I. W. WHITSETT and JOHN S. BLACKWELL, for the respondent.

I. In the setoff of this plaintiff, in the suit of W. R. Cunningham against William Jackson (this plaintiff), tried before J. J Browning, a justice of the peace, August 20, 1886, the issues in said trial being made up and joined on the account of...