Myton v. The Fidelity & Casualty Company

• Decision Date: 05 March 1906
• Citation: 92 S.W. 1149,117 Mo.App. 442
• Parties: MARY P. MYTON, Respondent, v. THE FIDELITY & CASUALTY COMPANY, Appellant
• Court: Kansas Court of Appeals

92 S.W. 1149

117 Mo.App. 442

MARY P. MYTON, Respondent, v. THE FIDELITY & CASUALTY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 5, 1906

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

AFFIRMED.

Judgment affirmed.

H. W Currey and Frank L. Forlow for appellant.

(1) The affidavit in attachment in B. H. and Sarah Ross v. Myton and Ethel S. Mining Company fails, entirely, to recite any grounds of attachment as required by section 190, Kansas Code (Dassler's Statutes of Kansas, 1901, sec. 4624), and therefore the seizure and subsequent holding of the property of the defendants was illegal and void. Hanley v Headley, 10 Kans. 88. (2) The purchaser of property attached and sold under an execution against the attached property, based on such attachment proceeding, takes no title. Waples on Proceeding In Rem, sec. 587-588; Waples on Attachment (2 Ed.), sec. 157; Wilson v. Arnold, 5 Mich. l. c. 105; Manley v. Headley, 10 Kan. l. c 74; Dickerson v. Cowley, 15 Kans. 209; Implement Co. v. Wagon Works, 58 Kans. 130-135; Fink v. Armstrong, 9 S.D. 255, 68 N.W. 740; During v. Warren, 44 N.W. 1068, 1 S.D. 35; Duxbury v. Dahle, 78 Minn. 427; Burnett v. McClure, 78 Mo. 676; Homes v. Clement, 64 Wis. 152; Bank v. Gaston, 40 Mo.App. l. c. 122-31; Hargadine v. Van Horn, 72 Mo. 370; 3 A. & E. Pl. and Pr., 4; Nachtrief v. Stoner, 1 Colo. 424; Hewitt v. Terry, 56 Mich. 591; Copehart v. Downing, 10 West Va. 130; Campbell v. Hall, 1 Kans. l. c. 55, reprint 490; People ex rel. v. Blanchard, 61 Mich. 478; Van Fleet on Collateral Attack, sec. 263. (3) The affidavit and writ of attachment no longer forms a part of an original proceeding, by which an action at law may be commenced. And the defendant, by virtue of this policy, did not owe the plaintiff, Mary P. Myton, the duty of defending said attachment. Ferguson v. Glidewell, 48 Ark. 200; Bundrem v. Denn, 25 Kans. 430; Barton v. Wright, 3 Kans. 227; Miller v. Dixon, 2 Kan.App. 445; Elliott v. Mitchell, 3 Green (Iowa) 237, 239. (4) The defendant's consent, given in the most formal manner, could not give jurisdiction to render said judgment, nor give life to that which is a nullity. Dogan v. Cole, 63 Miss. 153; Sims v. Charleston, 3 W.Va. 415; Smith, Heddins & Co. v. Hackley, 44 Mo.App. 614. (5) The defendant, plaintiff herein, was not in the district court of Cherokee county, Kansas, on the 14th day of January, 1902 (Jan. term). A judgment rendered against a party not in court is void. Hargis v. Moore, 7 Kans. 416, reprint p. 250; State ex rel. v. Ross, 118 Mo. 65; Newton v. Newton, 32 Mo.App. 162.

A. E. Spencer and McAntire & Scott for respondent.

(1) Where in a suit of a sister State a court of competent jurisdiction acquires jurisdiction of the person of the defendant and a personal judgment is rendered by the court, the defendant cannot in another suit in this State attack that judgment. And by a more powerful reason the judgment is conclusive where it appears to have been rendered upon confession or stipulation of the attacking party. Harbin v. Chiles, 20 Mo. 314; Warren v. Lusk, 16 Mo. 108-114; Harness v. Green, 19 Mo. 323; Murphy v. Smith, 86 Mo. 339; Thompson v. Elevator Co., 77 Mo. 522. (2) Appellant is not a stranger to the judgment which it now attacks collaterally, but on the contrary it admits it is a privy, though not in name a party. It also admits that the judgment was rendered upon agreement and stipulation in open court and that the court which rendered the judgment was a court of competent jurisdiction. Such judgment cannot in this suit be assailed by the appellant on the ground that there was no proper affidavit for attachment in the suit of Ross v. Myton in Kansas. Sloan v. Mitchell, 84 Mo. 546; Meyers v. Miller, 55 Mo.App. 338; McClellan v. Ry., 103 Mo. 295; Beckner v. McLinn, 107 Mo. 289; McGurry v. Wall, 122 Mo. 614; Livingston v. Allen, 83 Mo.App. 295; Burt v. Alexander, 15 Mo.App. 181; Forder v. Davis, 38 Mo. 108; Puntz v. Kuester, 41 Mo. 447; Johnson v. Beazley, 65 Mo. 250; Baker v. Baker, 70 Mo. 136; Faulkerson v. Davenport, 70 Mo. 546; State v. Evans, 83 Mo. 319; Yates v. Johnson, 87 Mo. 213; Karnes v. Alexander, 92 Mo. 660; McFall v. Dempsey, 43 Mo.App. 373; Knoll v. Woellin, 13 Mo.App. 275; Pickering v. Templeton, 2 Mo.App. 432; Bank v. Hughes, 10 Mo.App. 11; Casler v. Chase, 160 Mo. 424-425; Estes v. Nell, 163 Mo. 395; Brown v. Appelman, 83 Mo.App. 79. (3) Where the defendant in an attachment suit makes no plea in abatement, he thereby confesses the attachment lien even though he had not made any stipulation respecting the attachment. Muskgrove v. Mott, 90 Mo. 107. (4) The filing of an answer to the merits in an attachment suit is a waiver of the plea in abatement. Audenired v. Hall, 45 Mo.App. 204; Harty v. Schuman, 13 Mo. 547; Cannon v. McManus, 17 Mo. 345; Fordyce v. Haythorne, 57 Mo. 120; Greene v. Craig, 47 Mo. 90; McDonald v. Fist, 60 Mo. 172; Little v. Harrington, 71 Mo. 390. (5) Appellant is therefore bound by the actions of its attorneys in the case of Ross v. Myton. Molten v. Booker, 115 Mass. 36; Bonnifield v. Thorpe, 71 F. 924. (6) Where there is a personal appearance, as there was in the suit in which the judgment now attacked by appellant was rendered, there could be no special judgment in rem, the judgment must be general. Payne v. O'Shea, 84 Mo. 129; Borum v. Reed, 73 Mo. 461. (7) A court is authorized to render a judgment for costs in carrying out a compromise of parties in pursuance of a stipulation or the consent of the parties given in open court. Murphy v. Smith, 86 Mo. 338; Thompson v. Elevator Co., 77 Mo. 522. (8) It is contrary to the first principles of justice that a party should obtain an advantage over another by confessing a judgment against her, thus admitting its validity, and in a subsequent proceeding upon such judgment, claim that at the time it was rendered the court has no jurisdiction and the judgment was therefore not valid. Davis v. Wakelee, 156 U. S. Sup. 689-692. The payment of a part of the judgment will not discharge the whole, even though it purports to be complete satisfaction thereof. Winter v. Cable Co., 160 Mo. 189; K. C., M. & B. Co. v. Ry. 151 Mo. 390; St. Joseph v. Railway, 116 Mo. 636; Allen v. Hickery, 156 Mo. 59. (9) The objection that a liability is not within the term of the policy of insurance may, of course, be waived; and where the insurer undertakes the defense of an action by the injured person against the insured, with full information, it will be deemed to have waived the point that the liability was not within the terms of the insurance policy. 11 Am. and Eng. Ency. Law (2 Ed.), p. 13; Cement Co. v. Ins. Co. 11 A.D. 411; Titus v. Ins. Co., 81 N. Y. App. 410; McNally v. Ins. Co., 137 N.Y. 389; Robey v. Ins. Co., 120 N.Y. 510; Trippe v. Fund Society, 140 N.Y. 23; Fuller Bros. Co. v. Fidelity & Casualty Co., 94 Mo.App. 490; LaForce v. Insurance Co., 43 Mo.App. 518; Williams v. Santa Fe Co., 153 Mo. 519; Fink v. Ins. Co., 66 Mo.App. 513.

OPINION

JOHNSON, J.

Action upon a policy of insurance. The material facts are not disputed and may be stated as follows: On October 2, 1899, defendant issued the policy under consideration to a Mr. Sully, the owner of certain mines in Galena, Cherokee county, Kansas. Sully, in December following, sold the property to plaintiff and assigned the policy to her with the consent of defendant. The undertaking of the insurer as disclosed by the terms of the policy was to indemnify the insured "Against loss from common law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employee or employees of the assured while on duty at the places and in the occupation mentioned in the schedule, hereinafter given, in and during the continuance of the work described in the said schedule."

Among the provisions of the policy, these are material to the present inquiry:

"If, thereafter, any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, the assured shall immediately forward to the home office of the company every summons or other process as soon as the same shall have been served on him, and the company will at its own cost defend against such proceeding in the name and on behalf of the assured (and pay) the indemnity or settle the same, unless it shall elect to pay to the assured the indemnity provided for in clause A of special agreements, as limited therein."

"The assured shall not settle any claim except at his own cost, nor incur any expense, nor interfere with any negotiation for settlement, or in any legal proceeding, without the consent of the company previously given in writing. . . . The assured, when requested by the company shall aid in securing information, evidence and the attendance of witnesses, and in effecting settlements and in prosecuting appeals.

"No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment," etc.

On May 3, 1900, while the policy was in force, a laborer named Ross, employed in the mine by plaintiff, was fatally injured. Shortly after his death, his father and mother, B. H. and Sarah Ross, brought suit in the district court of Cherokee county, Kansas, a court of competent jurisdiction, against the assured, alleging in the petition filed that the death of their son was the direct result of the negligence of his said employer. The deceased was an unmarried minor and, under the Kansas law, a right of action such as that pleaded vested in his parents.

The defendant there (plaintiff here) was a...