King v. Mann, No. 25184.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSeddon
Citation286 S.W. 100
PartiesKONG v. MANN.
Docket NumberNo. 25184.
Decision Date30 July 1926
286 S.W. 100
KONG
v.
MANN.
No. 25184.
Supreme Court of Missouri, Division No. 1.
July 30, 1926.

[286 S.W. 101]

Appeal from Circuit Court, St. Clair County; C. A. Calvird, Judge.

Action by A. J. King against John E. Mann and another. An order sustaining plaintiff's motion for a new trial, after judgment for the named defendant, was affirmed, and the cause certified to the Supreme Court, by the Court of Appeals (208 Mo. App. 642, 235 S. W. 506). Affirmed, and cause remanded for a new trial.

Hargus & Johnson, of Osceola, for appellant.

W. M. Bowker, of Nevada, Mo., L. E. Crook, of Osceola, and John A. Gilbreath, of Clinton, for respondent.

SEDDON, C.


This action has had a long and tortuous career through the courts of the state. It is one to collect a $100 attorney's fee. It was commenced originally against John E. Mann and his father, W. T. Mann, as codefendants, on June 12, 1915, in a justice of the peace court in Vernon county, from whence it was appealed to the circuit court of Vernon county and tried de novo, resulting in a verdict and judgment for both defendants on October 8, 1915. On the same day, plaintiff filed a motion for a new trial, which was sustained and a new trial granted, but the record does not show the grounds assigned by the trial court for its order. The case was then removed on change of venue to the circuit court of Bates county, and a trial there had, again resulting in a verdict and judgment for both defendants on November 24, 1916. On. February 6, 1917, the latter court sustained plaintiff's motion for a new trial, without assigning a reason or ground therefor (so far as the record shows), and defendants appealed to the Kansas City Court of Appeals, where the order granting a new trial was affirmed; the latter court holding that, no grounds having been assigned by the trial court in granting a new trial, it would be assumed, inasmuch as the motion for a new trial complained that the verdict was against the weight of the evidence, that the trial court may have sustained the motion on that ground, and, if so, that was a matter exclusively within the discretion of the trial court, and was not reviewable on appeal. King v. Mann, 199 S. W. 705.

The order of the trial court having been affirmed, the cause returned to the circuit court of Bates county for a second start, resulting in a verdict and judgment, en February 18, 1918, for W. T. Mann, and a directed verdict and judgment for plaintiff against defendant John E. Mann. Defendant John E. Mann appealed to the Kansas City Court of Appeals, but, plaintiff not appealing from the judgment In favor of the father, W. T. Mann, the latter drops out of the case. The Kansas City Court of Appeals, on the second appeal, held that the trial court erred in directing a verdict for plaintiff against defendant John E. Mann, reversed the judgment, and remanded the cause for a retrial. King v. Mann, 207 S. W. 836.

Thus the action returned to the circuit court of Bates county for a third start, from whence it was removed by plaintiff on change of venue to the circuit court of St. Clair county, again resulting in a verdict and judgment for the sole defendant, John E. Mann, on December 8, 1920. Plaintiff filed a motion for a new trial, which was sustained on April 8, 1921; the trial court assigning no reason or ground for its action. Defendant appealed to the Springfield Court of Appeals, which court ruled that the order of the trial court granting a new trial was proper, but indicated that it would be the order of the appellate court that the cause be remanded, with directions to the trial court to enter a judgment for plaintiff for $100, with interest and costs, were it not for the fact that the appellate court deemed its opinion and judgment to be in conflict with the decision of the Kansas City Court of Appeals in King v. Mann, 207 S. W. 836. Therefore, because of such conflict, the Springfield Court of Appeals certified the cause to this court for final determination. King v. Mann, 208 Mo. App. 642, 235 S. W. 506. Thus it appears that the action has been tried once in a justice's court, four times in three different circuit courts, has been ruled three times in two different Courts of Appeals, and now we are afforded an opportunity of trying our hands and judicial minds upon this momentous action.

The facts are somewhat briefly stated in the three opinions of the several Courts of Appeals herein cited. Stated more fully again, they are as follows:

Defendant was a stockholder in a meatpacking corporation, which had executed a mortgage or deed of trust in May, 1913, for $6,000 upon its real property, plant, equipment, meats and bills receivable. This mortgage had been foreclosed for default in payment of interest, and some six or seven of the stockholders and directors of the corporation had purchased the properties, in the name of one of them, at foreclosure sale, for the sum of $15,000. Defendant, who was the owner of $6,450 (par value) of capital stock in the corporation, was not one of the purchasing stockholders at the foreclosure sale held on January 4, 1915. Hence he was in position to lose his holdings in the capital stock of the corporation. Defendant claimed that the corporation

286 S.W. 102

had sufficient funds on hand to make the interest payment due upon the mortgage, but that the default in payment of interest and the subsequent foreclosure was a scheme or device by which defendant and other stockholders in the corporation were to be "frozen out" of their interests in the corporation. Defendant admitted that plaintiff was employed by him as an attorney to bring a suit against the purchasing stockholders to set aside the deed of foreclosure. Plaintiff and defendant differ only as to the terms of the contract of employment, which was verbal.

Plaintiff testified:

"They [defendant and his father] thought, if a suit was brought to tie the plant up in its present condition, that the stockholders— those that had purchased it—would come to them for a compromise, and pay them some of their money, their object being to keep the packing house folks, who had bought the plant, from reorganizing and reincorporating under the law; wanted them to meet them for a compromise, and get some of their money that they said they had lost; and they wanted to know if I would bring such a suit. I said: `I don't know;' I would hear all the facts. They reiterated that they wanted a suit brought, simply to tie up the packing plant, so that there could not be a reincorporation of the stockholders that had bought it, and that they thought that they could in that way effect a compromise. `Well,' I said, `if that is all you want done, I will bring the suit for $100, and I think we can tie it up, so that there would be nobody willing to purchase the stock and go into a corporation that was in litigation.' They both spoke up and said: `That is satisfactory to us; we want you to get right at it.' I went to the office and worked until about 8 o'clock, and came down with my skeleton and dictated it to her [the stenographer], and she copied something like three or four copies of the statement I had. I then read it to the Matins, and they said that was just exactly what they wanted. I then prepared a lis pendens—that is, a notice of suit—to file in the recorder's office. These papers were taken to the sheriff's office, and the sheriff served them that night, on the various stockholders of the corporation, including the trustees that had foreclosed it; and we got through, 7 think, about 10 minutes to 12 o'clock. When that was done, they said the banks are now closed; `we will come to your office Monday morning, and pay you $100.' I said: `That will be all right, gentlemen.'"

The testimony of two of plaintiff's witnesses tends to corroborate his testimony that he was to be paid a fee of $100 for merely filing the papers in the suit.

Defendant testified respecting the terms of the employment:

"I went up to Mr. King's office that morning, and told him I wanted him to take a case against the packing company, and he agreed to handle the case; and I told him the facts of the case, all I could give him, there was a good many of them, and I went over them again. We went over the case together, and he agreed to take the case for $100, if he lost the case—he was to fight it through the circuit court—and $200, if he won it. He also agreed, at the time, to get the books in court; that was the principal part of it. We had to prove from it in order to beat the case. The books were never gotten into court. So I brought my father up after lunch, about 12:30, and he rehearsed the case to father, and he [father] said he stood good for the fee; and he went to work and framed the petition at that time. He was at work most every time I was up there that afternoon on the petition, writing it. He said I had a good case; that he would get the books in court and clear it up. The first I ever knew of the dismissing of the case, or of that petition, I got summons that I was sued for an attorney's fee; that is how I come to find out the case was dismissed. I went to inquiring about it at the clerk's office. I thought I had a case in court all the time, until I got this summons; then, of course, I didn't know until I inquired."

Cross-examination:

"Q. You went on past his office every day; any time you desired to know anything about the case, you walked upstairs and saw Mr. King, didn't you? A. Oh, yes. Q. You did go up there frequently to see him, didn't you? A. Yes, sir. Q. You were up there dozens of times, weren't you? A. Yes, sir. Q. During the time the suit was pending? A. Yes, sir. Q. After the first demurrer was sustained, he told you when you were up there when he was preparing the second petition—you were there, weren't you? A. Yes—well—yes, he was making preparations to prepare the second petition. Q. You knew that would come up at the May...

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19 practice notes
  • Murphy v. Kroger Grocery & Baking Co., No. 38280.
    • United States
    • United States State Supreme Court of Missouri
    • April 6, 1943
    ...162 S.W. (2d) 621; Hoelzel v. Chicago, R.I. & P. Ry. Co., 85 S.W. 126; Semple v. United Rys. Co. of St. Louis, 133 S.W. 115; King v. Mann, 286 S.W. 100; Hemelreich v. Carlos, 24 Mo. App. 264; King v. Kansas City Life Ins. Co., 164 S.W. (2d) John C. Casey and Roberts P. Elam for respondent. ......
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...of the jury or the court sitting without a jury. 5 C.J.S. 550; O'Donnell v. B. & O.R. Co., 26 S.W. (2d) 929, 324 Mo. 1097; King v. Mauer, 286 S.W. 100, 315 Mo. 318; Phillips v. Wilson, 250 S.W. 408, 298 Mo. 186; Davis v. Alexander, 183 S.W. 563; Schell v. F.E. Ransom Coal & Grain Co., 79 S.......
  • Jones v. Pennsylvania Railroad Co., No. 38998.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1944
    ...Co., 33 S.W. 1150, 131 Mo. 533; McFarland v. United States Mut. Acc. Assn. of City of New York, 27 S.W. 436, 124 Mo. 204; King v. Mann, 286 S.W. 100, 315 Mo. 318, affirming 235 S.W. 506, 208 Mo. App. 642; Clarkson v. Garvey, 161 S.W. 664, 179 Mo. App. 9; Reissman v. Wells, 258 S.W. 43; Karn......
  • State ex rel. Gentry v. Becker, No. 38447.
    • United States
    • Missouri Supreme Court
    • July 6, 1943
    ...V, XIV, Amendments, Const. of United States; Sec. 1099, R.S. 1939; Kansas City v. Smith, 141 S.W. (2d) 1103, 238 Mo. 323; King v. Mann, 286 S.W. 100, 315 Mo. 318; Kansas City, etc., Ry. Co. v. Latham, 182 S.W. 717. (16) There is no such thing as inherent power of court, if, by that, is mean......
  • Request a trial to view additional results
19 cases
  • Murphy v. Kroger Grocery & Baking Co., No. 38280.
    • United States
    • United States State Supreme Court of Missouri
    • April 6, 1943
    ...162 S.W. (2d) 621; Hoelzel v. Chicago, R.I. & P. Ry. Co., 85 S.W. 126; Semple v. United Rys. Co. of St. Louis, 133 S.W. 115; King v. Mann, 286 S.W. 100; Hemelreich v. Carlos, 24 Mo. App. 264; King v. Kansas City Life Ins. Co., 164 S.W. (2d) John C. Casey and Roberts P. Elam for respondent. ......
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...of the jury or the court sitting without a jury. 5 C.J.S. 550; O'Donnell v. B. & O.R. Co., 26 S.W. (2d) 929, 324 Mo. 1097; King v. Mauer, 286 S.W. 100, 315 Mo. 318; Phillips v. Wilson, 250 S.W. 408, 298 Mo. 186; Davis v. Alexander, 183 S.W. 563; Schell v. F.E. Ransom Coal & Grain Co., 79 S.......
  • Jones v. Pennsylvania Railroad Co., No. 38998.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1944
    ...Co., 33 S.W. 1150, 131 Mo. 533; McFarland v. United States Mut. Acc. Assn. of City of New York, 27 S.W. 436, 124 Mo. 204; King v. Mann, 286 S.W. 100, 315 Mo. 318, affirming 235 S.W. 506, 208 Mo. App. 642; Clarkson v. Garvey, 161 S.W. 664, 179 Mo. App. 9; Reissman v. Wells, 258 S.W. 43; Karn......
  • State ex rel. Gentry v. Becker, No. 38447.
    • United States
    • Missouri Supreme Court
    • July 6, 1943
    ...V, XIV, Amendments, Const. of United States; Sec. 1099, R.S. 1939; Kansas City v. Smith, 141 S.W. (2d) 1103, 238 Mo. 323; King v. Mann, 286 S.W. 100, 315 Mo. 318; Kansas City, etc., Ry. Co. v. Latham, 182 S.W. 717. (16) There is no such thing as inherent power of court, if, by that, is mean......
  • Request a trial to view additional results

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