LaFfoon v. Fretwell

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 258
• Parties: DRURY LAFFOON, Appellant, v. E. O. FRETWELL ET AL., Respondents.
• Court: Missouri Court of Appeals

24 Mo.App. 258

DRURY LAFFOON, Appellant,

v.E. O. FRETWELL ET AL., Respondents.

Kansas City Court of Appeals, Missouri.

Jan. 10, 1887.

APPEAL from Cass Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

Statement of case by the court.

The plaintiff, Drury Laffoon, was, on the eighth day of May, 1878, summoned as garnishee in a case by attachment then pending in the circuit court of Cass county, in which the defendant, Fretwell, was plaintiff, and one Ammerman and Daniel Hibler were defendants. On the nineteenth day of July, 1878, Laffoon answered, and on the twenty-third day of July, 1879, judgment was rendered against him upon his answer. On the following day a motion for a new trial was filed and subsequently sustained, and Laffoon filed an amended answer. Fretwell excepted to the action of the court and refused to further prosecute his proceeding, whereupon the court dismissed the same for want of prosecution, and Fretwell sued out his writ of error from the Supreme Court.

The Supreme Court reversed the judgment of the circuit court. Fretwell v. Luffoon, 77 Mo. 26. It was decided that the circuit court erred in setting aside the judgment and granting a new trial, and that the judgment on the answer against Laffoon, which had been set aside, was properly rendered. The case was remanded with directions to proceed as indicated in the opinion. The effect of the opinion, as is conceded by counsel for the plaintiff in the present action, was a mandate to the circuit court to render judgment against Laffoon, on his original answer, as garnishee. In obedience to such mandate the circuit court, at its March term, 1883, so rendered judgment for $921.40; and Fretwell sued out execution thereon, and was proceeding to enforce the collection thereof by levy and sale, when restrained by a temporary injunction herein.

Upon a trial of this case the circuit court dismissed the plaintiff's bill, dissolved the temporary injunction and assessed ten per cent. damages against the plaintiff and his sureties. The plaintiff has appealed to this court.

WOOLDRIDGE & LANIEL, with A. COMINGO and EMMET PHILIPS, for the appellant.

I. Courts of equity will generally relieve against judgments when rendered under mistake, surprise or fraud. Fraud in law is sufficient. Dobbs v. Ins. Co., 72 Mo. 189; Sauer v. Kansas City, 69 Mo. 46; Bresnahan v. Price, 57 Mo. 422; Davis v. Staples, 45 Mo. 567; Perry v. Siter, 37 Mo. 273; Matson v. Field, 10 Mo. 100; Lawrence v. Bank, 54 N. Y. 432; Thompson v. Tilton, 34 N. J. Eq. 306; Wingate v. Haywood, 40 N. H. 437; Barber v. Buckeyeser, 39 Wis. 590; Stanton v. Embry, 46 Conn. 65, 595; 2 Story's Eq. Juris. (4 Ed.) sects. 885, 887; 1 High on Injunction, sects. 209, 210.

II. It is only requisite for plaintiff to show that he had a good defence, and was prevented by fraud, accident or mistake from presenting it. Taggart v. Wood,20 Iowa, 236; Freeman v. Miller, 53 Texas, 372; 1 High on Injunction, sects. 113, 126. Relief in equity is not barred, unless plaintiff had a full and fair opportunity to be heard in his defence. 1 High on Injunction, sects. 179, 200; Dobbs v. Ins. Co., 72 Mo. 189; Thompson v. Tilton, 34 N. J. Eq. 306.

III. The frauds that vitiate a judgment and warrant the granting of relief in equity, need not be actual, or intentional. It is sufficient if they are legal or constructive. Curren v. Esty, 110 Mass. 544; 1 High on Injunctions, sects. 202, 203; 1 Story's Eq. Juris. sects. 218, 219, 258, 259, 307, 313; 2 Story's Eq. Juris. sect. 887. Equity will not tolerate fraud, either actual or constructive. Todd v. Wheeler, 1 Dana, 403; Powers, Ex'r, v. Butler, Adm'r, 3 Green's Eq. 465.

IV. Mistakes and forgetfulness do not constitute negligence. Lyle v. Shinnebarger, 17 Mo. App. 66; Fraker v. Little, 24 Kas. 598; Lewellen v. Garnett, 58 Ind. 442. The alleged mistake was not mutual, it is true, but its correction will leave the defendants in statu quo. Matthews v. Kansas City, 80 Mo. 235.

V. The statutes of this state, and the decisions, forbade the rendition of judgment on the answer of the garnishee (the plaintiff in this action), without the framing of an issue thereon. Sects. 2532, 2536, Rev. Stat.; McCanse v. McClure, 38 Mo. 410; Weil v. Tyler, 38 Mo. 558; Holton v. Railroad, 50 Mo. 151; Bell v. Strow, 59 Mo. 118.

VI. The discretion of the lower court in granting a new trial cannot be reviewed except on application by mandamus. Sect. 23, article 6, Const. Mo.; Sects. 3672, 3710, 3743, Rev. Stat.; Freeman on Judgments, sects. 118, 120; Hill v. Wilkins, 4 Mo. 86; Helm v. Bassett, 9 Mo. 52; Pratt v. Judge, 12 Mo. 194; Boyce v. Smith, 16 Mo. 317; Keating v. Bradford, 25 Mo. 86; Leahey v. Dugdale, 41 Mo. 518; Simpson v. Blunt, 42 Mo, 544; State ex rel. v. Adams, 12 Mo. App. 443; State ex rel., etc., v. Horner, 10 Mo. App. 307.R. O. BOGGESS, ALLEN GLENN, and RAILEY & BURNEY, for the respondents.

I. “Courts of equity originally interfered to grant relief against judgments at law, on account of the impossibility of obtaining relief at law by new trial, when, under the circumstances, the verdict ought not to conclude the party. As the courts of law have extended their jurisdiction over the subject, courts of equity have withdrawn theirs from it. It is now the settled doctrine of the English courts of chancery not to relieve against a judgment at law on the ground of its being contrary to equity, unless the party aggrieved was ignorant of the fact relied on as the ground of relief pending the suit, or it could not have been received as a defence.” Powers' Ex'r v. Butler's Adm'r, 4 N. J. Eq., 3 Green Ch. 465; 3 Pomeroy's Eq. Jurisp., sects. 1364, 1365, and cases cited; Bateman v. Willoe, 1 Sch. and Lef. 201; Smith v. Lowry, 1 Johns. Ch. 323; Fuller v. Little, 69 Ill. 237; Burton v. Hynson, 14 Ark. 32; Lynne v. Allen, 51 N. H. 245.

II. All the facts set forth in plaintiff's bill were known to him at the time, and either were or could have been pleaded in the motion for a new trial in the case of Fretwell v. Laffoon, garnishee of Daniel Hibler. The statute of this state (sect. 3704, Rev. Stat.) has in cases like the one at bar, entirely abrogated the chancery proceeding, which formerly obtained. A court of equity will not interfere by injunction to restrain a judgment at law for causes, which, on a motion for new trial at law, had been held insufficient. Watson v. Field, 10 Mo. 100; Reed's Adm'r v. Hansard, 37 Mo. 199; 1 High on Injunction, sect. 166; 3 Pomeroy's Eq. Jurisp., sect. 1364, 1365; Gengo v. Tutt, 36 Mo. 141; Heintrager v. Lumbargo, 54 Iowa, 604; Lynne v. Allen, 51 N. H. 245.

III. Where defendant has been personally served with process, he cannot enjoin the judgment against him, unless he shows not only that it is inequitable to execute such judgment against him, but also that he could not have availed himself of his defence at law; or, that he was prevented by fraud or accident, without any fault or negligence on his part. Matson v. Field & Cathcart, 10 Mo. 100; George v. Tutt et al., 36 Mo. 140; Reed's Adm'r v. Hansard, 37 Mo. 199, et seq.; Miller et al. v. Bernecker, 46 Mo. 194; Marsh's Adm'r v. Bast, 41 Mo. 493; Carolus v. Koch, 72 Mo. 645; Shelbina Hotel Association v. Parker, 58 Mo. 327; Kelley v. Hurt, 74 Mo. 568, 571; Smith v. Sims, 77 Mo. 273; Shricker v. Field et al., 9 Iowa, 366, 371; Vilas v. Jones, 1 N. Y. 274; Stillwell v. Carpenter et al., 59 N. Y. 415, 422-3-4; Duncan v. Lyon, 3 Johns. Ch. 345, 351; Foster v. Wood, 6 Johns. Ch. 87; Floyd v. Jayne, 6 Johns. Ch. 479; Railroad v. Titus et al., 27 N. J. Eq. 102, 106, 109, 110; Holmes v. Steele, 28 N. J. Eq. 173; Ins. Co. v. Hoagson, 7 Cranch (U. S.) 332; Moore v. McGaha, 3 Tenn. Ch. 416, 417, 420; Fuller v. Little, 69 Ill. 229; Kann v. Strausberger, 71 Ill. 413; Higgins v. Bullock, 73 Ill. 205, and cases cited; Richmond Eng. Co. v. Robinson, 24 Gratt. (Va.) 548; Paynter v. Evans, 7 B. Monroe, 420; Emerson v. Udall, 13 Vt. 477; Fletcher v. Warren, 18 Vt. 45; Warner v. Conant, 24 Vt. 351; Graham v. Stagg, 2 Paige Ch. 321; Bierne v. Mann, 5 Leigh (Va.) 364; Meem v. Rucker, 10 Gratt. (Va.) 506; Bellamy v. Woodson, 4 Ga. 175; Conway v. Ellison, 14 Ark. 360; Noble v. Butler, 25 Kas. 645-9; Henry v. The Bank of Salina, 5 Hill, 523; Slack v. Wood, 9 Gratt. (Va.) 40, and cases cited; McLeod v. Lee, 17 Nev. 112; Wolfinger, Adm'r, v. Betz et al., 24 N. W. Rep. (Iowa) 228; 2 Story's Eq. Jurisp., sects. 887, 895, 896, 1572, and cases cited.

IV. When a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case. Petersinev. Thomas, 28 O. St. 596, 600, 601; Shepardson v. Cary, 29 Wis. 34; Phelan v. Gardiner, 43 Cal. 306; Bates v. Spooner, 45 Ind. 409; McLeod v. Lee, 17 Nev. 112; Thompson v. Myrick, 24 Minn. 9, 11; Harris v. Harris, 36 Barb. 93, 94, 95; Neil v. Tolman, (Oregon) 7 Pac. Rep. 103, 106, et seq.; Jordan v. Van Epps, 85 N. Y. 427, 436; Clemens v. Clemens, 37 N. Y. 73, 74; Railroad v. Levi, 17 Mo. App. 501, 507, 508, and cases cited; Smith v. Nelson, 62 N. Y. 286, 288.

V. The judgment of the Supreme Court having been pleaded by defendants in their answer is res adjudicata as to all matters therein decided, and as to all other questions which could have been raised under the motion for a new trial in said cause. See Fretwell v. Laffoon, 77 Mo. 26, et seq.; Chouteau v. Gibson, 76 Mo. 38, 44, 45, 46, 49, 50, 51; The State ex rel. Dixon v. Givan, 75 Mo. 516; Chouteau v. Allen, 74 Mo. 56; Pomeroy v. Benton, 77 Mo. 79, 80, et seq.; Shroyer v. Nickell, 67 Mo. 589; Armstrong v. The City of St. Louis, 69 Mo. 310; Gamble v. Gibson, 19 Mo. App. 531; Broom's Legal Maxims, sect. 321. “ Nemo debet bis vexari pro una et eadem causa.”

HALL, J.

The defendants pleaded the judgment of the Supreme Court, in the case of Fretwell v. Laffoon, in their answers as res adjudicata....