Meierhoffer v. Kennedy
| Citation | 263 S.W. 416,304 Mo. 261 |
| Decision Date | 10 June 1924 |
| Docket Number | 24010 |
| Parties | CHARLES MEIERHOFFER v. WALTER J. KENNEDY and GODFREY SWENSON, Appellants |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled June 10, 1924.
Appeal from Jackson Circuit Court; Hon. Thad B. Landon Judge.
Affirmed.
Kelly Buchholz, Kimbrell & O'Donnell, A. E. Watson and Horace H. Blanton for appellants.
(1) The petition upon which the pretended judgment was based, to stay which judgment the bond in suit was executed, did not state facts sufficient to constitute a cause of action; nor did it allege any issuable or traversable facts, but mere conclusions; nor did it allege any consideration for the pretended contract between Meierhoffer, defendant and Swenson, which was the basis of the alleged cause of action sued on in said case; nor did it allege any contract between Meierhoffer, Kennedy and Swenson; and said pretended judgment was for a sum of money in excess of the sum claimed in said petition to be due, and said judgment was, therefore, void. Sec. 1220, R. S. 1919; Charles v. White, 214 Mo 187, 207; Swift v. Central Union Fire Ins. Co., 279 Mo. 606; Wenzlick v. Funck Lumber Co., 224 S.W. 61; Steffen v. American Surety Co., 224 S.W. 103; Stark v. Kirchgraber, 186 Mo. 633, 644; Scott v. Royston, 223 Mo. 568, 591; State ex rel. McManus v. Muench, 217 Mo. 124, 137; State ex rel. Kelly v. Trimble, 247 S.W. 187; McConnell v. Deal, 246 S.W. 594; Gray v. Clements, 286 Mo. 100, 107; Ecton v. Tomlinson, 278 Mo. 282; Sidway v. Mutual Land & Live Stock Co., 163 Mo. 342, 373; Holzhour v. Meer, 59 Mo. 437; Wilson v. Darrow, 223 Mo. 520, 531; Reynolds v. Stockton, 140 U.S. 254, 266; Bell v. Johnson, 207 Mo. 281; Ex parte Smith, 135 Mo. 223, 229; Showles v. Freeman, 81 Mo. 540; 23 Cyc. 1589. (2) The court erred in rendering the judgment herein against the defendants for the reason the defendant Kennedy may be called upon to answer twice for any indebtedness he may owe plaintiff under the garnishment proceedings in the District Court of Wyandotte County, Kansas. Sutton v. Heinzle, 84 Kan. 756; Howland v. Ry. Co., 134 Mo. 474; Wythe Hardware Mfg. Co. v. Lang & Co., 127 Mo. 242; Harris v. Balk, 198 U.S. 215. (3) The court erred in rendering judgment against the defendants herein for the reasons that the defendants were thereby deprived of their property without due process of law, and contrary to the provisions of the Constitution of the United States and the Constitution of the State of Missouri; and were thereby denied the protection, rights, privileges and immunities guaranteed to them by the constitutional provisions, to-wit: Sec. 30, Art. 2, Mo. Constitution; Sec. 10, Art. 2, Mo. Constitution; Sec. 1 of the Fourteenth Amendment to U.S. Constitution; Sec. 2, Art. IV, U.S. Constitution; Sec. 1, Art. IV, U.S. Constitution. See Kinney v. Supreme Lodge, 40 S.Ct. (U.S.) 371; Fontleroy v. Lum, 210 U.S. 230; B. & O. Railroad Co. v. Hostetter, 240 U.S. 620; C. M. & St. P. Ry. Co. v. Schendel, 292 F. 326.
Guthrie & Conrad and Hale Houts for respondent
(1) The judgment covered by the appeal bond was valid and res judicata as to appellants. Sidwell v. Kaster, 289 Mo. 187; Winningham v. Trueblood, 149 Mo. 580; Holt County v. Cannon, 114 Mo. 514; Horstmeyer v. Connors, 51 Mo.App. 394; Fiedler v. Construction Company, 178 S.W. 766; Brackett v. Brackett, 53 Mo. 267; State ex rel. v. Shields, 237 Mo. 337; Stegall v. Chemical Company, 183 S.W. 1086; Harter v. Petty, 266 Mo. 305; Kansas City v. Winner, 58 Mo.App. 302. (2) The Kansas garnishment was not a defense as to either appellant. Sec. 2155, R. S. 1919; Howland v. Railway, 134 Mo. 484; Wabash Railroad Company v. Tourville, 179 U.S. 322; Norman v. Insurance Company, 237 Mo. 582. (3) There is involved the infringement of no constitutional provisions. Wabash Railroad Company v. Tourville, 179 U.S. 322. (4) The case calls for the assessment of damages for vexatious appeal. Sec. 1515, R. S. 1919; Fiedler v. Construction Company, 178 S.W. 763; Overton v. White, 126 Mo.App. 363; State ex rel. v. Shields, 327 Mo. 337.
Suit on appeal bond given by defendant Kennedy as principal and defendant Swenson as one of his sureties in a suit by the plaintiff, Charles Meierhoffer, against said defendant Kennedy in Jackson County Circuit Court, wherein judgment was rendered against defendant Kennedy for $ 6836.70, and by him appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was affirmed. Said bond was in the sum of $ 14,000, and in the form prescribed by the statute.
The answer was (a) general denial; (b) that the petition in the case appealed from in which the bond was given did not state a cause of action; (c) that said petition alleged an indebtedness of $ 6800.46, due plaintiff from said defendant Kennedy, and the judgment in said cause was for $ 6836.70, without any allegation in the petition to support a judgment for that sum or any sum; (d) that before execution was issued on said judgment, said Kennedy was garnished as the debtor of said plaintiff in an attachment suit brought in the District Court of Wyandotte County, Kansas, against plaintiff Meierhoffer, by one Harry Hansell, in which suit said Hansell demanded from said Meierhoffer $ 65,000, and which garnishment was pending when this suit was instituted and tried; that a motion of said Kennedy to quash execution under the plaintiff's judgment in said cause in Jackson County, Missouri, was pending and undetermined before this suit was instituted. That said District Court of Wyandotte County, Kansas, had jurisdiction, under Section 1, Article 3, of the Constitution of Kansas, of said suit of Hansell v. Meierhoffer, and defendant invokes the protection of Section 1 of Article 4 of the Constitution of the United States providing that full faith and credit must be accorded to the public acts, records, and judicial proceedings of every other State, and the protection of Section 2 of Article 4 of the Constitution of the United States providing that the citizens of every State shall be entitled to all the privileges and immunities of citizens of the several states; also the protection of the Fourteenth Amendment to the Federal Constitution. That said attachment suit in Kansas was authorized by Sections 7121, 7123, 7134 of the General Statutes of said State.
Reply was a general denial.
At the trial, plaintiff offered in evidence the judgment in the case in the Circuit Court of Jackson County, of Meierhoffer v. Walter J. Kennedy, dated April 4, 1919, for $ 6836.70, and the mandate of the Kansas City Court of Appeals affirming said judgment on June 26, 1920, and the opinion of said court attached thereto. It was admitted that on application to the Supreme Court for a writ of certiorari in said cause said writ was denied. The appeal bond sued on was then put in evidence. It is in the statutory form and duly executed by defendants and approved by the court, and for the amount stated in the petition. Also evidence that no part of the judgment had ever been paid. Plaintiff here rested.
Defendants offered the petition in said cause of Meierhoffer v. Kennedy in the Circuit Court of Jackson County, and an exemplified copy of the record and proceedings in the District Court of Wyandotte County, Kansas, in said attachment and garnishment proceedings of Harry Hansell v. Charles Meierhoffer. They showed the suit was commenced and garnishment issued August 27, 1920. No service on defendant in said cause, but garnishment served on Kennedy in said Wyandotte County on date it was issued. These records were all admitted subject to objection. There was no answer filed to the garnishment in Kansas, because the filing of such answer was enjoined by the Circuit Court of Jackson County, from which an appeal was taken and was pending in the Supreme Court of Missouri at the time the case was tried. Defendants then offered and read in evidence, subject to objection, the provisions of the constitution and statutes of Kansas, as pleaded and set forth in their answer, and the case of Sutton v. Heinzle, 84 Kan. 756. Also the motion to quash execution and stay proceedings in the case of Meierhoffer v. Kennedy in the Circuit Court of Jackson County, and the order of said court overruling said motion, and the motion for new trial thereon filed by said Kennedy, which was undisposed of when this case was tried. The grounds of said motion to quash were substantially the same -- setting up the garnishment proceedings in Kansas and other matters pleaded -- as in the answer in this case. It was admitted that when the attachment suit in Kansas was commenced this suit on the appeal bond had not been instituted, but the record shows that said judgment had been rendered against defendant Kennedy by the Circuit Court of Jackson County, Missouri, and affirmed by the Court of Appeals before the attachment suit in Kansas was commenced. In rebuttal, plaintiff offered evidence showing that he, at all times, at and after said attachment suit in Kansas was instituted, was a resident of Jackson County, Missouri, and that his cause of action against Kennedy, on which said judgment was rendered, accrued in said Jackson County. That he was served with notice of the Kansas garnishment in said Jackson County by the sheriff thereof, but knew of its pendency at that time and before he brought his said injunction suit and restrained the filing of an answer to said garnishment. Jury was waived and the cause was tried by the court sitting as a jury. No instructions were asked or given. The court found the issues and rendered judgment for plaintiff as prayed. After their motion for new trial was overruled, defendants appealed to this court.
I. The judgment and opinion of the ...
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