Murphy v. Barron
| Decision Date | 05 March 1921 |
| Parties | JOSEPH MURPHY and SARAH MURPHY v. WILLIAM N. BARRON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.
Reversed and remanded (with directions).
Arnot L. Sheppard for appellant.
(1) The court erred in not deducting from the amount of damages awarded respondents, the amount of taxes paid by appellant. Secs. 11508, 11509, R. S. 1909; Haarstick v Gabriel, 200 Mo. 237. (2) The court erred in not rendering judgment for appellant. (a) The judgment of the Butler County Circuit Court in the condemnation suit was res judicata of the title to the land in controversy herein. In re Breck, 252 Mo. 302; Transportation Co. v Traube, 59 Mo. 362; Spratt v. Early, 199 Mo 501; Napa Valley Elec. Co. v. Board, 251 U.S. 366. (b) In a condemnation suit, the court acquires jurisdiction of both the subject-matter and the person, by the filing of the petition and service of notice thereof upon the landowners. Sec. 2361, R. S. 1909; Quayle v. Ry. Co., 63 Mo. 465; Ry. Co. v. Kemper, 256 Mo. 279; Ry. Co. v. Swan, 120 Mo. 30. (c) Respondent cannot question the jurisdiction of the circuit court in the condemnation suit, for three reasons: first, because the award was paid into court; second, because respondents voluntarily invited the court to pass upon the merits of the controversy, by filing their interplea; third, because respondents cannot collaterally attack the judgment on the interpleas. Butler County Railroad v. Barron, 173 Mo.App. 365; McClanahan v. West, 100 Mo. 322; Bensieck v. Cook, 110 Mo. 182; Royle Mining Co. v. Casualty Co., 161 Mo.App. 200-201; Union Depot Co. v. Frederick, 117 Mo. 138; Railway v. Donnovan, 149 Mo. 93; State ex rel. v. Bank, 211 S.W. 817; Fitzgerald v. Road District, 195 S.W. 695. (d) The court does not lose jurisdiction in a condemnation suit, merely because the award of the commissioners is not paid within ten days. In such case, the condemnation plaintiff merely loses the right to abandon the proceeding. After ten days the defendant landowner may enforce the award by execution. Sec. 2362, R. S. 1909; State ex rel. v. Lubke, 15 Mo.App. 152; State ex rel. v. Withrow, 24 S.W. 638. (3) Identity of the cause of action is necessary to support a defense of res judicata. "The cause of action is the basic facts which warrant the court in granting relief, or as we generally say, 'the facts constituting the cause of action.'" Hill v. Dillon, 183 S.W. 1088; Ingwerson v. Railroad, 150 Mo.App. 381; Litton v. Railroad, 111 Mo.App. 149; Thornton v. Smelting Co., 178 Mo.App. 38; 1 C. J. 940, and notes; Railroad Co. v. Dixon, 179 U.S. 139, 45 L.Ed. 125; Bradford v. Southern Ry. Co., 195 U.S. 248, 49 L.Ed. 180. (4) A former opinion in the same case is not always conclusive on second appeal. (a) This court has on many occasions reviewed our own decisions on second appeal, where no hardship would result to innocent parties, and reached different conclusions as to the law itself as well as to the facts of a case. Williams v. Butterfield, 214 Mo. 429; Wilson v. Beckwith, 140 Mo. 359; Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131. (b) The Supreme Court will not permit an injustice to be worked by reason of a former opinion. Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 370; Vaughn v. Railroad, 78 Mo.App. 643; Bealey v. Smith, 158 Mo. 522; Bank v. Douglas, 146 Mo. 53; Chambers' Admr. v. Smith, 30 Mo. 159; Sparks v. Brown, 46 Mo.App. 534. (c) The appellate courts are always open even upon second appeal for the correction of error and the administration of justice. Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 370; Vaughn v. Railroad, 78 Mo.App. 643; Bird v. Sellers, 122 Mo. 32; Bealey v. Smith, 158 Mo. 523; Baker v. Railroad, 147 Mo. 152; Hamilton v. Marks, 63 Mo. 167; Hoagland v. Rys. Co., 209 S.W. 569. (d) The facts being essentially different from those on the former appeal, the Supreme Court will not be bound by its former opinion. Williams v. Butterfield, 214 Mo. 428; Armor v. Frey, 253 Mo. 447; Crispen v. Hannovan, 86 Mo. 168; Fuchs v. St. Louis, 167 Mo. 653; May v. Crawford, 150 Mo. 525; Vaughn v. Railroad, 78 Mo.App. 644; Grumley v. Webb, 48 Mo. 562; Parker-Washington Co. v. Transit Co., 165 Mo.App. 306; Armstrong v. Railroad Co., 203 S.W. 249; Benton v. St. Louis, 248 Mo. 98. (e) It is a matter of common knowledge that personal injury cases are reversed and remanded, retried upon different proof, and judgment affirmed. They are too numerous to cite more than a limited number. Case v. Bridge & Transit Co., 211 S.W. 99; Finnigan v. Railroad, 244 Mo. 662; Huskey v. Boiler Co., 187 Mo.App. 438, 192 Mo.App. 371, 188 S.W. 101. (5) The Supreme Court can quash a judgment of one of the Courts of Appeals, only when it acquires jurisdiction of the case by certification or by certiorari; and then not merely because it considers the opinion of the Court of Appeals erroneous, but only when the opinion is contrary to the last controlling decision of the Supreme Court. Therefore, even though this court may consider the judgment in the condemnation case incorrect, said adjudication is controlling upon this court, in the absence of a writ of certiorari, or certification by one of the judges of the Springfield Court of Appeals. Harrison v. Jackson County, 187 S.W. 1183; State v. Reynolds, 214 S.W. 121; State ex rel. v. Mining Co., 262 Mo. 501. (6) Admitting for the sake of argument only, that the judgment in the condemnation suit is not technically res judicata, respondents are now estopped to claim title to the land in controversy. (a) A former judgment is conclusive in a second suit, as to all questions which were actually in issue and adjudicated in the former suit, even though the two cases were not upon the same cause of action. Case v. Sipes, 217 S.W. 309; State ex rel. v. Mining Co., 262 Mo. 501; Garland v. Smith, 164 Mo. 22; Gymnastic Society v. Hagerman, 232 Mo. 693; Dickey v. Heim, 48 Mo.App. 118; Barkhoefer v. Barkhoefer, 93 Mo.App. 381; Paving Co. v. Field, 132 Mo.App. 628; Roberts v. Neal, 137 Mo.App. 115; Hartwig v. Ins. Co., 167 Mo.App. 130; Napa Valley Elec. Co. v. Board, 251 U.S. 366; New Orleans v. Bank, 167 U.S. 371, 42 L.Ed. 211; Cromwell v. Sac County, 94 U.S. 353, 24 L.Ed. 198; Bigelow, Estoppel (3 Ed.), pp. 51, 29, 57, 103; Aurora v. West, 74 U.S. (7 Wall.) 102; Van Pelt v. McGraw, 4 N.Y. 113; Bryan v. Atchison, 2 La. Ann. 462; Scuddy v. Schaffer, 14 La. Ann. 576; Plicque v. Perret, 19 La. 318; Gilman v. Horseley, 5 Mart. (N. S.) 664; Dufour v. Camfranc, 11 Mart. 607; Patterson v. Bonner, 14 La. 233; Martin v. Martin, 5 Mart. (N. S.) 170; Freeman v. Barnum, 131 Cal. 386; Keohler v. Mfg. Co., 146 Cal. 335; Markley v. People, 171 Ill. 260; Reynolds v. Randel, 175 Ill. 615; Rowell v. Smith, 123 Wis. 510; Freeman on Judgments, sec. 253; 24 Am. & Eng. Ency. Law (2 Ed.), p. 780; Moran v. Vicroy, 77 S.W. 668. (b) Respondents are concluded by the former litigation, not only as to all questions within the pleadings and decided thereunder, but as to every other matter fairly within the issues in said cause. Richardson v. Dell, 191 S.W. 63; Harrison v. Jackson County, 187 S.W. 1184; Barnhart v. Little, 185 S.W. 177; McClure v. Bank, 263 Mo. 136; Hines v. Hines, 243 Mo. 495; Tie & Timber Co. v. Pulliam, 237 Mo. 18; Emert v. Aldredge, 231 Mo. 128; Spratt v. Early, 199 Mo. 500; Donnell v. Wright, 147 Mo. 647; Mo. Pac. Ry. Co. v. Levy, 17 Mo.App. 507; Bates v. Bodie, 245 U.S. 526, 62 L.Ed. 449.
Henson & Woody for respondents.
(1) The decision of this court on the former appeal to the effect that the judgment rendered against respondent Joseph Murphy in the tax suit is void, is the law of this case upon this appeal and is binding on this court. As to this court, it is stare decisis. Murphy v. Barron, 205 S.W. 49; Drainage District v. Bates County, 216 S.W. 949; Knisely v. Leathe, 178 S.W. 457; State ex rel. v. Spencer, 166 Mo. 272; Carey v. West, 165 Mo. 452; Thompson v. Pinnell, 199 S.W. 1014. (2) The title to the real estate which is the subject-matter of this suit was not involved in the issue made by interpleas filed by respondent and appellant in the suit of the Butler County Railroad Company to obtain a right-of-way over the same. The controversy was over the fund only. The judgment rendered there did not affect this title. Hilton v. St. Louis, 129 Mo. 389; Davis v. Watson, 158 Mo. 192; Cox v. Baker, 150 Mo. 424; Price v. Blankenship, 144 Mo. 203; Railroad Co. v. Barron, 173 Mo.App. 368; Schroer v. Brooks, 200 S.W. 1068; Fisher v. Johnson, 139 Mo. 437; Rothrock v. Mining Co., 146 Mo. 57; Heman v. Wade, 141 Mo. 601; Kennedy v. Duncan, 224 Mo. 664-5; Cox v. Barker, 150 Mo. 424; McKinney v. Lumber Co., 192 Mo. 34-5; Brannock v. Magoon, 216 Mo. 727; Stough v. Light Co., 217 S.W. 519; Brick Co. v. Lane, 205 S.W. 801. (3) No act of the parties to the interplea, not even their consent, could have made the title an issue so as to confer jurisdiction on this court. Stough v. Light Co., 217 S.W. 519; Marshall v. Reddick, 177 S.W. 381. (4) All of the issues presented on this trial were presented on the former trial, and all the evidence introduced was or could have been introduced in that trial. The decision of this court on appeal from the judgment there rendered, is a final determination of those issues, and they may not again be litigated. Donnell v. Wright, 144 Mo. 203; Emmert v. Aldridge, 231 Mo. 124; McClure v. Bank, 263 Mo. 134; St. Louis v. United Rys., 263 Mo. 423; Richardson v. Dell, 191 S.W. 64; Ogden v. Auer, 184 S.W. 73; Williams v. City of Hayti, 184 S.W. 473; Julian v. Monument Co., 187 S.W. 584.
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