McIntosh v. Wiggins

• Citation: 191 S.W.2d 637,354 Mo. 747
• Decision Date: 05 November 1945
• Docket Number: 39392
• Parties: Mary Lois McIntosh v. Charles Wiggins et al., Appellants
• Court: United States State Supreme Court of Missouri

191 S.W.2d 637

354 Mo. 747

Mary Lois McIntosh v. Charles Wiggins et al., Appellants

No. 39392

Supreme Court of Missouri

November 5, 1945

Rehearing Denied January 7, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Chas. B Williams, Judge.

Reversed and remanded (with directions).

Nagel Kirby, Orrick & Shepley and Lehmann & Allen for appellants.

(1) The circuit court had jurisdiction to render the decree including the disputed paragraph, in the original will construction suit, and its decree is res adjudicata. Bangs v. Duckinfield, 18 N.Y. 592, 23 W. & P. 387; Venner v. Great Northern R. Co., 153 F. 408, 23 W. & P. 388; 30 C.J.S. 325-6; Cross v. Delvalle, 1 Wall. 1, 17 L.Ed. 515; Shaller v. Mississippi Valley Trust Co., 319 Mo. 128, 3 S.W.2d 726; American Natl. Bank v. Saunders, 330 Mo. 456, 50 S.W.2d 87; McIntosh v. Wiggins, 123 F.2d 316; State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017. (2) The federal court in both cases brought by Mrs. McIntosh decided that the circuit court had jurisdiction to render the original will construction decree including the disputed paragraph; they also decided that the title to this disputed income was in the defendant and the plaintiff's claim to the income was adjudicated against her in those two cases and those judgments are binding on her. Miller v. Oil Co., 248 F. 83; Perry v. Wiggins, 57 F.2d 622; McIntosh v. Wiggins, 123 F.2d 316; Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936; In re Breck, 252 Mo. 302, 158 S.W. 843; Cordia v. Matthew, 344 Mo. 1059, 130 S.W.2d 597; Chouteau v. Gibson, 76 Mo. 38; Railroad Commission v. Pacific Gas, 302 U.S. 388, 82 L.Ed. 319; Hopkins v. Southern Cal. Tel. Co., 275 U.S. 393, 72 L.Ed. 329; In re President and Fellows of Harvard College, 149 F.2d 69. (3) The decision in the Kennard case is not a new fact or change in legal relations which will avoid the effect of the two federal judgments. In the second federal suit the District Court and Circuit Court of Appeals not only determined and adjudged the title to the disputed income to be in the defendant, but also determined and adjudicated that the Kennard decree did not entitle the plaintiff to avoid the effect of either of the federal judgments and the decision in that case is res adjudicata of that contention here. Stevenson v. Edwards, 98 Mo. 622, 12 S.W. 255; Hill Co. v. U.S.F. & G. Co., 157 Ill.App. 261; Cain v. Union Central Life Ins. Co., 123 Ky. 59; People ex rel. First Natl. Bank v. Russell, 283 Ill. 520, 119 N.E. 617; Grand v. City of Lincoln, 55 F. 516; Thompson v. Consolidated Gas Corp., 300 U.S. 51, 81 L.Ed. 510; American Law Institute Restatement of Law of Judgments, sec. 13; Freeman on Judgments (5 Ed.), sec. 712; City of Watertown v. Eastern Dakota Electric Co., 296 F. 832. (4) This court has no power to strike out or annul the disputed paragraph in the will construction decree in favor of Mrs. McIntosh and has no jurisdiction, either summary or otherwise, to do so in order to destroy the binding effect of the prior federal judgments. Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048; State ex rel. v. Mulloy, 322 Mo. 281, 15 S.W.2d 809. (5) Section 10 of Article II of the Constitution of Missouri does not authorize this court to avoid the binding effect of the judgments in the two prior federal suits. State ex rel. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418; Landis v. Campbell, 79 Mo. 433. (6) The decree in the instant case destroys the defendant's title and right to the disputed income by virtue of the two federal judgments under Sections 1 and 2 of Article 3 of the Constitution of the United States and under Title 28 of the U.S. Code, particularly Secs. 1, 41 and 171 thereof, and is in violation of those sections. Dupasseur v. Rochereau, 21 Wall. 130, 22 L.Ed. 588; Deposit Bank v. Frankfort, 191 U.S. 499, 48 L.Ed. 276; Virginia-Carolina Chem. Co. v. Kirven, 215 U.S. 252, 54 L.Ed. 179; Stoll v. Gottlieb, 305 U.S. 165, 83 L.Ed. 104. (7) The decree of the circuit court in the instant case denies full faith and credit to the two federal judgments in violation of Art. IV, Sec. 1, of the United States Constitution, and Title 28, Sec. 687, U.S. Code. Stoll v. Gottlieb, 305 U.S. 165, 83 L.Ed. 104. (8) The defendants are not bound in this case by the judgment in the Kennard case because of the difference of parties plaintiff even though the Kennard case involved another undivided interest in the same property and under the same will. Stewart v. Springfield, 350 Mo. 234, 165 S.W.2d 626; Restatement of Law of Judgments, sec. 103. (9) The instant suit is an attack upon both federal judgments; the petition fails to state any grounds for setting aside either one of the judgments, and as to the first is barred by the statute of limitations of Missouri. Secs. 1013, 1014, R.S. 1939. (10) Public policy requires that litigation, particularly involving questions of title, be settled and that final judgments in such cases be binding and conclusive and cannot be upset even for errors committed in the decision or because they are claimed to be unjust or inequitable. 1 Freeman on Judgments (5 Ed.), sec. 305. (11) This court is without jurisdiction in a suit for a declaratory judgment to avoid the binding effect of prior judgments of the federal court against the plaintiff. 1 C.J.S., sec. 18 (h), p. 1045; sec. 186, p. 1025; Secs. 1126-1140, R.S. 1939; Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945; State ex rel. K.C. Bridge Co. v. Terte, 345 Mo. 95, 131 S.W.2d 587. (12) The decree in the Kennard case was not admissible in evidence in this case as evidence of title in favor of Mrs. McIntosh. Grand v. City of Lincoln, 55 F. 516. (13) The decree in this case is erroneous in that it failed to enjoin the plaintiff from further prosecution of her claim.

Paul Bakewell, Jr. for respondent; John E. Cramer, Jr., and Claude I. Bakewell of counsel.

(1) A plaintiff may join in a petition a request for a declaratory judgment and a request for other relief of equitable character. Blank v. Lennox Land Co., 174 S.W.2d 862. (2) The property, being one-fourth of the original Fowler one-third, or one-twelfth of the property, vested absolutely in Mary Lois McIntosh on August 10, 1928, when her mother Dolly L. Kilpatrick, died. This court cancelled and vitiated a paragraph of a decree and conveyance, which had recited to the contrary. Kennard v. Wiggins, 160 S.W.2d 706. (3) That decree acted directly upon the title to the property. State ex rel. v. Grimm, 243 Mo. 667; 21 C.J., sec., 863; Macklin v. Schmidt, 104 Mo. 361. (4) That the courts of Missouri lacked jurisdiction to adjudge, at the instance of life tenants, the then future, contingent and prospective interests of contingent remaindermen, before such interests had come into existence is settled by the uniform and repeated decisions of this court. Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986; Shaller v. Mississippi Valley Trust Co., 319 Mo. 128, 3 S.W.2d 726. (5) The petition in the original case had prayed for the determination of "vested" interests only. Therefore, the jurisdiction in that case was limited to the relief prayed in the petition, and, as against a defaulting defendant, everything in the decree which purported to adjudge "contingent interests," was relief other and greater than that which had been prayed by the petition and was, therefore, void. Sec. 1246, R.S. 1939; Phillips v. Broughton, 270 Mo. 365, 193 S.W. 596; Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916; Garrison v. Garrison, 354 Mo. 62, 188 S.W.2d 644. (6) The adjudication by this court, that the paragraph of the original decree and conveyance had been void, made it a nullity and without force or effect upon the person or upon the property. In re Buckles, 331 Mo. 405, 53 S.W.2d 1055. (7) A void judgment may be vacated at any time. Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499. (8) A void judgment is a nullity. All claims flowing out of it are void. It cannot be the basis of any further judgment. Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3; St. L., K. & S. Ry. Co. v. Wear, 135 Mo. 230; Freeman on Judgments (4 Ed.), sec. 117. (9) When a will is void as to one, it cannot be valid as to another. McCarthy v. Fidelity Natl. Bank & Trust Co., 30 S.W.2d 19, 325 Mo. 727; Rush v. Rush, 19 Mo. 441. (10) For the same reason, a decree construing a will cannot be void as to one and valid as to another. (11) The paragraph of the decree and conveyance in the original case was an entirety. When this court adjudged it to have been void, that adjudication deleted it from the decree and conveyance. Randalls v. Wilson, 24 Mo. 76; Neal v. Curtis and Co. Mfg. Co., 41 S.W.2d 543, 328 Mo. 389; Statement of Daniel N. Kirby, counsel for Ella L. Wiggins in the original case and in the Kennard case. He swore: "It deletes from the decree all provisions as to what became of that (the Fowler) share if you should succeed in this case." (12) When a later judgment contradicts a prior judgment, such "last judgment constructively vacated" the former and inconsistent judgment. Marsden v. Nipp, 325 Mo. 822, 30 S.W.2d 77; Overton v. Overton, 37 S.W.2d 565, 327 Mo. 530; Freeman on Judgments (5 Ed.), sec. 629. (13) In the original case, the decree of the circuit court was not the final judgment. It was modified and supplanted by the decision of this court which did not rule upon the paragraph (119 S.W.2d 844) and consequently such paragraph is not res adjudicata, but is nugatory. State ex inf. McKittrick v. Mo. Pub. Serv. Corp., 174 S.W.2d 871, 351 Mo. 961. (14) The estoppel of any judgment extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a re-examination of the same question between the same parties where, in the interval, the facts have...