Ketchum v. Thatcher

• Decision Date: 17 May 1882
• Citation: 12 Mo.App. 185
• Parties: V. S. KETCHUM ET AL., Appellants, v. E. H. THATCHER, Respondent.
• Court: Missouri Court of Appeals

12 Mo.App. 185

V. S. KETCHUM ET AL., Appellants,

v.E. H. THATCHER, Respondent.

St. Louis Court of Appeals, Missouri.

May 17, 1882.

A judgment appealed from, with supersedeas, will not, pending the appeal, support a plea of res adjudicata.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

MARSHALL & BARCLAY, for the appellants: After appeal with supersedeas, a judgment cannot be pleaded as res adjudicata, and has no effect, even as evidence, until the decision of the appeal.-- Woodbury v. Bowman, 13 Cal. 634; Sherman v. Dilly, 3 Nev. 22; Bank v. Adams, 3 Woods C. Ct. 21; Stone v. Spillman, 16 Texas, 432; Atkins v. Wyman, 45 Me. 399; Wells on Res Adjudicata, 363, sect. 441; The State v. France, 72 Mo. 41.

CLINE, JAMISON & DAY, for the respondents.

LEWIS, P. J., delivered the opinion of the court.

It results from the matters appearing on the face of this record that, if a certain paper, described in the pleadings, is the last will and testament of Solomon Ketchum, deceased, the plaintiffs have no right of action. The circuit court, holding that the validity of the alleged will was res adjudicata, sustained a motion for judgment upon the pleadings against the plaintiffs.

It appears that the alleged will was duly admitted to probate, and that afterwards a suit was instituted by the present plaintiffs, contesting its validity. The circuit court gave judgment in favor of the will, and this judgment was affirmed in the court of appeals. An appeal, with bond for stay of execution, was taken to the supreme court, wherein the cause is yet pending. Do the judgments of the circuit court and the court of appeals sustain the defence of res adjudicata, notwithstanding the appeal and supersedeas?

An appeal was unknown to the ancient common law. In the civil law and equity jurisprudence its operation was to take the whole case to the higher tribunal, there to be tried de novo and subjected to a new and final determination, without any reference to the conclusion of the inferior court. A natural sequence of this method was the general understanding that the appeal itself was effectual to vacate and annul the first judgment. The case then was still open, as if no judgment had been rendered. It seems to have been supposed, in the present case, that, by analogy with this ancient understanding, the Massachusetts doctrine, which holds that a judgment appealed from cannot be treated as a final determination for any purpose, depends for its sanction upon the fact that, in that state, the appellate court always renders a new and complete judgment, without sending the cause back to the lower court with instructions how to proceed, and eventually to enforce its own judgment; but that in Missouri; where a different practice prevails, there is no foundation for the same doctrine. But if it be true that the doctrine in Massachusetts grows in any wise out of the form of final judgments in the supreme court, the result ought to be the same in Missouri. For the appellate tribunal here has a discretionary power in all cases, and it is one very often exercised to give a complete and final judgment, such as the court below ought to have given. Rev. Stats., sect. 3776. It will appear on examination, however, that the doctrine referred to is by no means peculiar to Massachusetts, or to the states whose appellate jurisprudence is similar to hers. In Pierce v. Tuttle (51 How. Pr. --), it was held that “where the plaintiff has obtained a final judgment against the defendant in one action and the defendant has obtained a judgment against the plaintiff in another action in which the parties are the same, from which the plaintiff has appealed, the defendant's judgment cannot be set off against the plaintiff's judgment, while the appeal is pending.” In the same opinion, the case appealed is treated as an action pending, and directions are given for a stay of proceedings in the other case, until the appeal shall be determined. This, it will be observed, is not a statutory supersedeas controlling the stay in the case to which it is applied. It is, in fact, a refusal to recognize the judgment appealed from, as a final, or any determination, “good until reversed.” See also Terry v. Roberts, 15 How. Pr. 65. In Sherman v. Dilly (3 Nev. 22), it is held that a “judgment cannot be pleaded in bar, or as an estoppel, whilst it is pending on appeal.” In New Orleans Banking Association v. Adams (3 Woods, 21), Billings, United States District Judge, held, citing Escurix v. Laboval (7 La. 575), that, under the jurisprudence of Louisiana, “to maintain the plea of res judicata, the judgment must be final. If it is open to appeal, the plea will not hold.” In Stone v. Spillman (16 Texas, 432), it was held that an answer setting up that the defendant held the property under a will, and that a judgment against his right so to hold it had been appealed from, presented a meritorious defence that the appeal suspended all proceedings until it was decided. In Woodbury v. Bowman (13 Cal. 634), it is held that “where a suit is pending in the supreme court on appeal, the judgment below is suspended for all purposes, and it is not evidence upon the question at issue even between the parties.” In each of the states thus far mentioned, the appellate methods, as to bond for supersedeas, etc., appear to be similar to that of Missouri. In Maine, where the practice resembles that of Massachusetts, it is held that an appeal vacates the judgment appealed from. Atkins v. Wyman, 45 Me. 399. In Connecticut, this general doctrine is reversed, only as to decrees of the probate court, which are held to remain in force, notwithstanding an...