New Madrid County v. Phillips

• Citation: 28 S.W. 321,125 Mo. 61
• Parties: NEW MADRID COUNTY v. PHILLIPS.
• Decision Date: 26 November 1894
• Court: United States State Supreme Court of Missouri

28 S.W. 321

125 Mo. 61

NEW MADRID COUNTY v. PHILLIPS.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

RES JUDICATA.

Where one of the cotenants is made the only party to a proceeding to condemn land, the county cannot recover from him, in a direct action for money paid him as damages, on recovery of judgment against it by the other cotenants.

Appeal from circuit court, New Madrid county; H. C. O'Bryan, Judge.

Action by New Madrid county against Murray Phillips. There was a judgment for plaintiff, and defendant appeals. Reversed.

J. J. Russell, for appellant. H. C. Riley, for appellee.

BARCLAY, J.

The plaintiff, New Madrid county, charges in the petition that defendant, Murray Phillips, is "indebted to plaintiff in the sum of $125 for money had and received by defendant from plaintiff on the 7th day of May, 1889; that, although the same has been demanded of defendant, he neglects and refuses to pay same to plaintiff. Wherefore it demands judgment for the sum of one hundred and twenty-five dollars, together with interest," etc. The answer is a general denial. The cause was tried by the court, a jury having been waived. The material facts of the controversy appear in an agreed statement, the substance of which is as follows: At the August term of the New Madrid county court, 1888, there were proceedings to widen a certain public road through lands belonging to the estate of Shapley R. Phillips, deceased. There were three heirs to said estate, viz. Murray Phillips, the estate of Amos R. Phillips, deceased, and Amos R. Phillips. Murray Phillips was the administrator of the estates of Shapley Phillips and Amos R. Phillips, deceased; and, as the administrator of Shapley Phillips, he had the possession of said lands, renting and controlling the same. He was also guardian of Amos R. Phillips, and had not then made final settlement nor been discharged as such; but said Amos R. Phillips had before that time arrived at full age, and there was pending in the circuit court a suit for rents and all other matters of account between them as guardian and ward, which said suit was finally determined afterwards, in 1890. At the said term of the county court in 1888, the latter appointed commissioners to assess damages to Murray Phillips on account of the widening of said road. At the February term, 1889, these commissioners made their report to the county court, assessed the damages to Murray Phillips (for widening said road) at $125, and the court approved the report. Thereupon, Murray Phillips removed the fences, as required for the widening of said road, expending all of said damages in removing and rebuilding fences. At the May term, 1889, Murray Phillips received a warrant and payment from the county court for said sum of $125. When the proceedings were commenced in the county court, there was also pending in the circuit court of said county a partition suit to divide said lands of Shapley Phillips' estate among the three heirs. At the March term of the circuit court, 1889, commissioners in partition filed their report, in which they show that they examined and divided in March, 1889, the said Shapley Phillips' lands, giving to said Amos R. Phillips the particular piece through which the said public road runs. That report was approved. Amos R. Phillips then claimed of the county the $125 previously ordered to be paid to Murray Phillips in the condemnation suit, and he sued for and recovered that amount from the county. This suit is an effort to recover back the sum the county paid Murray Phillips as above. Some testimony was offered by defendant as to costs of moving and rebuilding fences, but, as it cannot be material here, it need not be stated. At the close of the evidence, the defendant asked the trial court to give this declaration of law, viz.: "The court declares the law of this case to be that if the evidence shows that the defendant was, at the time...