Kansas City v. Forsee

• Decision Date: 03 February 1913
• Citation: 153 S.W. 572,168 Mo.App. 213
• Parties: KANSAS CITY et al., Respondents, v. WM. C. FORSEE, Defendant, Appellant
• Court: Kansas Court of Appeals

153 S.W. 572

168 Mo.App. 213

KANSAS CITY et al., Respondents, v. WM. C. FORSEE, Defendant, Appellant

Court of Appeals of Missouri, Kansas City

February 3, 1913

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

Samuel P. Forsee for appellant.

Edward P. Garnett for respondents.

OPINION

TRIMBLE, J.

In June, 1900, Kansas City condemned certain land to be used in creating Penn Valley Park. In that proceeding, $ 28,762 was awarded M. S. C. Donnell for land owned by him upon which were several deeds of trust held by the Citizens' National Bank. Donnell owed other creditors and they were all trying to get their claims paid out of the above fund. The said bank, on February 15, 1901, brought suit to impound the money awarded Donnell, to restrain the city from paying it out and to have its claims adjudged superior to all others. Donnell and all claimants were made parties defendant with the city. April 10, 1901, the city brought a bill of interpleader against Donnell, the bank and all the other claimants, deposited the fund in court and prayed that they be required to interplead. To this all parties appeared and set up their several claims. Among them, the defendant William C. Forsee, on October 26, 1901, filed his answer and cross-bill against Donnell alleging an indebtedness due the former of $ 5441 for attorney fees in many matters therein specified. Donnell answered denying liability.

The two suits above referred to were consolidated; and on January 15 1902, the court, by agreement of all parties, referred the cause to Mr. J. V. C. Karnes to hear and decide the whole issue and report. While the referee was hearing the various claims, Forsee and Donnell on February 19, 1902, entered into a written stipulation wherein it was agreed that Forsee was entitled to recover $ 4500 from Donnell, and that the referee should render judgment in favor of Forsee and against Donnell for said sum; and that the judgment for $ 3792.90 in the case of Forsee v. Catherine E. Donnell, rendered January 19, 1901, is for a portion of the same services and claim for which judgment is herein stipulated, the agreement in no way to affect Forsee's right to all legal remedies on said judgment against Catherine E. Donnell.

This stipulation was presented to the referee, but it is not exactly clear from the record presented to us just what action the referee took upon it at that time, except that, in a preliminary report, he must have either found that Forsee was entitled on said stipulation to an allowance in his favor of $ 4500, or treated it as having been allowed. Because, on December 31, 1902, the court overruled exceptions filed by Donnell and his wife to a preliminary report, and ordered, among other things, a payment to Wm. C. Forsee of $ 250 "on account of the amounts due said parties by M. S. C. Donnell." Again, on January 9, 1902, the court, upon another preliminary report of the referee, and upon the evidence taken before the referee, ordered $ 150 paid to Forsee, and, June 25, 1907, made a similar order for $ 93.54 to be paid him.

The judgment against Catherine E. Donnell for $ 3972.90 mentioned in the stipulation above referred to, was obtained by Forsee in a suit instituted by him in December, 1899, against M. S. C. Donnell and Catherine E. Donnell, in which suit he dismissed as to M. S. C. Donnell, and judgment for that sum against Catherine E. alone was rendered in January, 1901. In the cross-bill against Donnell, in the case before the referee, Forsee specifically alleges that Donnell and his wife, Catherine E., are jointly and severally liable for the fees sued for, and that Donnell was jointly liable with his wife for all the fees demanded in the suit against her.

The referee filed his final report May 18, 1903, in which he found that this judgment against Catherine E Donnell for $ 3792.90 was fully paid and satisfied of record and that Forsee received thereon the sum of $ 4054.81 March 13, 1902. And the referee, upon evidence taken and admissions made before him, construed the above stipulation to mean that the Catherine E. Donnell judgment was for the same services as the $ 4500 stipulation and that said judgment, when paid, should be credited on said $ 4500 judgment. Said referee, therefore, credited said latter judgment with the amount received on the former and also with the amounts theretofore paid Forsee under decretal orders of the court, and reported that Forsee was entitled to recover the sum of $ 269.47 with 6 per cent from February 2, 1903, until paid. This action of the referee was based not only upon the wording of the stipulation but also upon evidence taken in reference to the whole matter, which evidence was preserved in written form and attached to and filed with his final report. Two days after the filing of the referee's final report, Donnell filed exceptions to the referee's finding that $ 269.47 was still due Forsee, claiming in said exceptions that only $ 63.19 was due him and tendering said amount to him. Forsee filed no exceptions, and the cause stood on Donnell's exceptions to the report from May 20, 1903, until April 1, 1910, a period of nearly seven years, at which date the court took up the question of passing upon the Donnell exceptions and the disposition to be made of said final report. (It may be well to state in passing that the reason the case stood thus so long was that it was awaiting the settlement of different branches of the controverties between Donnell and his creditors in the Supreme Court of Missouri and the Supreme Court of the United States.) During...