Moffett v. Commerce Trust Co.

• Decision Date: 11 February 1946
• Docket Number: 39509
• Citation: 193 S.W.2d 588,354 Mo. 1098
• Parties: Louise McGrew Moffett and Louise McGrew Moffett as Executrix of the Estate of Thomas S. Moffett, Deceased, Appellants, v. Commerce Trust Company, a Corporation, Helen Weede, B. C. Howard, and William H. Kopp
• Court: Missouri Supreme Court

193 S.W.2d 588

354 Mo. 1098

Louise McGrew Moffett and Louise McGrew Moffett as Executrix of the Estate of Thomas S. Moffett, Deceased, Appellants, v. Commerce Trust Company, a Corporation, Helen Weede, B. C. Howard, and William H. Kopp

No. 39509

Supreme Court of Missouri

February 11, 1946

Rehearing Denied April 8, 1946.

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed.

A E. Watson and Martin J. O'Donnell for appellants.

(1) The circuit court erred in ruling on the alleged demurrers to the fifth amended petition, without the jurisdictional two days' notice required by its rules, on the same day they were filed, to-wit, December 30, 1944. Rule 29, Circuit Court of Jackson County (402-403); Rule 19, Circuit Court, Jackson County (405); Meierhoffer v. Hansel, 294 Mo. 195; Gordon v. Burris, 125 Mo. 39; Broom's Legal Maxims (8 Ed.), p. 99; Sec. 8, Art. XI, Mo. Constitution; Hovey v. Elliott, 167 U.S. 409; In re Letcher, 190 S.W. 19; Windsor v. McVeigh, 93 U.S. 274; State ex rel. v. Kansas City, 310 Mo. 542; XIVth Amendment, U.S. Constitution. (2) The court erred in giving effect to Section 948, R.S. Mo. 1939, for the reason that said section is a legislative judgment and bill of pains and penalties, and therefore void under Section 10 of Article I of the United States Constitution providing that "no state shall . . . pass any bill of attainder." State v. Graves, 352 Mo. 1115; Cummings v. Missouri, 71 U.S. 277, 18 L.Ed. 356; Drehman v. Stifle, 75 U.S. 595, 19 L.Ed. 508; In re Yung Sing Tee, 36 F 437; Cooley's Principles of Constitutional Law, pp 311-312. (3) The court erred in dismissing this case as to each and all of the respondents, and in adjudging that they recover treble costs of and from appellant and have execution therefor, for the reason that in so doing the court exceeded the jurisdiction and authority conferred upon it by said section. Bank of Tupelo v. Stonum, 220 Mo.App. 152; Gordon v. Burris, 125 Mo. 39; Swing v. Furniture Co., 150 Mo.App. 574; State ex rel. v. Walbridge, 119 Mo. 383; Spurlock v. Railroad, 93 Mo. 13; Sec. 948, R.S. 1939; Throckmorton v. United States, 98 U.S. 61; De Louis v. Meek, 2 Green 55; Commerce Trust Co. v. Moffet, 345 Mo. 741; 25 C.J. 1208-1209; State v. Railroad, 253 Mo. 642; Richardson v. Palmer, 24 Mo.App. 480; Fiedler v. Construction Co., 162 Mo.App. 528; Meierhoffer v. Hansel, 294 Mo. 195; Wilson Co. v. Hartford Fire Ins. Co., 300 Mo. 1. (4) The court on December 30, 1944, erred in sustaining the alleged demurrers because the papers so entitled in Judge Terte's court and Judge Ridge's court were mere collateral attacks on the orders of Judge Buzard overruling motions to strike for the same alleged cause of misjoinder of parties plaintiff on May 27, 1942, and on the order of August 10, 1942, of Judge Buzard overruling the demurrer of respondent Kopp. Scott v. Rees, 300 Mo. 123; State ex rel. v. Ellison, 266 Mo. 423; Commercial Union of America v. Anglo-South American Bank, 10 F.2d 937; Appleton v. Smith, 1 Fed. Cas. 1075, No. 498; United States v. Biebusch, 1 F. 213; Cole Silver Mining Co. v. Virginia & Gold Hill Water Co., 6 Fed. Cas. 72; Oglesby v. Attrill, 14 F. 214; Reynolds v. Iron Silver Mining Co., 33 F. 354; Wakelee v. Davis, 44 F. 532; Shreve v. Cheesman, 69 F. 785; Plattner Implement Co. v. International Harvester Co., 133 F. 376; State ex rel. v. Buckner, 207 Mo.App. 48; Bennett's Admr. v. Russell's Admr., 39 Mo. 152; 42 C.J. 519, sec. 177; Ruggles v. International Assn. Iron Workers, 331 Mo. 20; Graves v. Dakessian, 132 S.W.2d 972; Chadeloid Chemical Co. v. H.B. Chalmers Co., 242 F. 71; Kenny v. Kelleher, 63 Cal. 442; United Drug Co. v. Cordley, 239 Mass. 334; Carlisle v. Barnes, 183 N.Y. 272; State ex rel. McKittrick v. Wiley, 349 Mo. 239. (5) The court erred in that its orders and rulings on the alleged demurrers were based upon the issues as they stood prior to the amendment of the fifth amended petition on December 30, 1944; and in refusing to grant appellant a hearing upon the issues presented by the pleadings after the amendment was made, as required by the rules of the court; and in assigning the cause to Division 6, without notice as required by the rules of the court; and in rendering the erroneous judgment rendered without evidence, trial or hearing; all in violation of Section 1 of the XIVth Amendment to the Constitution of the United States. Ex parte Nelson, 251 Mo. 63; Sec. 948, R.S. 1939; Meierhoffer v. Hansel, 294 Mo. 195; State ex rel. Chick v. Evans, 273 Mo. 660. (6) The court erred in sustaining the alleged demurrers because the documents so entitled were not really demurrers but were either motions, speaking demurrers or answers, which waived all alleged grounds of demurrer and were collateral attacks on Judge Buzard's orders overruling pleadings for the same cause of misjoinder of parties plaintiff. Bliss on Code Pleading, sec. 404; Secs. 920, 922, 923, 948, R.S. 1939; McClurg v. Phillips, 49 Mo. 315; Pickering v. Mississippi Valley Natl. Tel. Co., 47 Mo. 457; Freeman on Judgments (5 Ed.), pp. 394, 691; Taber v. Wilson, 34 Mo.App. 89; Hanson v. Neal, 215 Mo. 256, 114 S.W. 1073; Cheely's Admr. v. Wells, 33 Mo. 106; Kammeyer v. City of Concordia, 352 Mo. 742; Kelly v. Hart, 61 Mo. 463; Mo. Pac. Ry. Co. v. Levy, 17 Mo.App. 501; Bennett v. Lohman, 292 Mo. 477; Pacific Lime & Gypsum Co. v. Mo. Bridge & Iron Co., 286 Mo. 112, 226 S.W. 853; Pickering v. Tel. Co., 47 Mo. 457; Long v. Towl, 41 Mo. 398; Insurance Co. v. Eaves, 2 S.W.2d 193; Lanowah Inv. Co. v. John Hancock Life Ins. Co., 162 S.W.2d 307, 236 Mo.App. 1062; Baldridge v. Ryan, 260 S.W. 537; Pomeroy on Code Remedies (5 Ed.), p. 214; Powell v. Banks, 146 Mo. 620, 48 S.W. 664; Jones v. K.C.F.S. & M. Ry. Co., 178 Mo. 528; Walker v. Lewis, 140 Mo.App. 26; State ex rel. Chick v. Davis, 273 Mo. 660; Meierhoffer v. Hansel, 294 Mo. 195; Pettingill v. Jones, 30 Mo.App. 280; Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185. (7) The circuit court was without jurisdiction to sustain the alleged separate demurrers of defendants (respondents) on the ground that there was a misjoinder of parties plaintiff, for the reason that the Code of Civil Procedure, Section 922, changed the common law rule on that question and omitted same as a ground for demurrer. Secs. 922, 923, R.S. 1939; Rainey v. Railway, 323 Mo. 662; State ex rel. Guion v. Miles, 210 Mo. 127; In re Shaw's Estate, 351 Mo. 1151; Sec. 3, Art. VI, p. 80, Laws 1849; Sec. 6, Chap. 128, R.S. 1855; Palmer v. Davis, 28 N.Y. 242; Brownson v. Gifford, 8 How. Pr. 389; Simar v. v. Canaday, 53 N.Y. 298; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Kammeyer v. City of Concordia, 179 S.W.2d 76; Webster v. Railway, 116 Mo. 114; State v. Hudson, 222 S.W. 1049; Three Way Land Co. v. Wells, 185 S.W.2d 795. (8) The appellant was properly joined in both capacities as joint plaintiffs in the circuit court, and said court erred in ruling that there was a misjoinder of parties plaintiff, and in sustaining the said demurrers based on said finding, and in then dismissing the case. Ravenscraft v. Pratt, 22 Kan. 20; Wilson v. Channell, 102 Kan. 793; Love v. White, 348 Mo. 640; Byers v. Weeks, 105 Mo.App. 72; Bristow v. Gage, 280 U.S. 327; Fall v. Eastin, 215 U.S. 1; Butler v. Lawson, 72 Mo. 227; Parker v. Simpson, 180 Mass. 334; Neiderberg v. Golluber, 162 S.W.2d 592; Griffith v. Bank, 147 F.2d 899; Young v. Boatmen's Natl. Bank, 171 S.W.2d 553; Myers v. Adler, 188 Mo.App. 607; Crenshaw v. Ullman, 113 Mo. 633; Burford v. Aldridge, 165 Mo. 419; Perry v. Roberts, 23 Mo. 221; Citizens Trust Co. v. Tindle, 272 Mo. 681; Wilson v. Hartford Fire Ins. Co., 300 Mo. 1; Hotchkiss v. Ogle, 153 Kan. 156; 24 C.J., sec. 2042; McLain v. Atlas Assur. Co., 67 S.W.2d 849; State ex rel. Utilities P. & L. Co. v. Ryan, 337 Mo. 1180; Armour v. Roberts, 151 F. 846; Pollard's Lessee v. Hagen, 3 How. 212, 11 L.Ed. 570; Cowles on Treaties and Constitutional Law; Dred Scott v. Sandford, 19 How. 393; Secs. 18, 85, 86, 87, 88, 850, 851, 856, 857, 858, 1099, 1229, R.S. 1939; Commerce Trust Co. v. Moffett, 345 Mo. 741; Code Missouri 1849; Mertens v. Lowenberg, 69 Mo. 208; Quinn v. Leathem, A.C. 495; Aiken v. Wisconsin, 195 U.S. 194; Moffett v. Moffett, 131 Kan. 582; 12 C.J. 632; Chitty on Pleading and Parties to Actions (14 Am. Ed.) 64; Andrews Stephen's Pleading, sec. 28; Rockwood v. Crown Laundry Co., 178 S.W.2d 440, 352 Mo. 561; Neiderberg v. Golluber, 162 S.W.2d 592; Sections 60-410 and 60-412, R.S. Kan. 1935. (9) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. Commerce Trust Company never was administrator of Moffett Brothers estate for the reasons, amongst others, the partnership administration statutes are in conflict with Section 10 of Article I, Constitution United States, prohibiting bills of pains and penalties; and with the treaty with France of 1803; and the involuntary servitude provision of the XIIIth Amendment, and the privileges and immunities, due process and equal protection provisions of Section 1 of the XIVth Amendment; and the overt acts of respondents in connection therewith rendered respondents liable to appellant in both capacities. Secs. 86, 87, 88, 645 R.S. 1939; Cummings v. Missouri, 4 Wall. 277; Treaty with France April 30, 1803; Boyd v. Nebraska, 143 U.S. 135, 36 L.Ed. 103; Boyd v. United States, 116 U.S. 616; Davis v. McColl, 179 Mo.App. 198; Act of Congress June 4, 1812, Laws Mo. Territory 1815, sec. 1, p. 32; Hagardine v. Gibbons, 114 Mo. 561; same case, 45 Mo.App. 460; Green's Admr. v. Virden, 22 Mo. 506; Ryland v. Banks, 151 Mo. 1; English Partnership Act of 1890, secs. 43, 22, 25; Uniform...