Norman's Land & Manufacturing Co. v. Idalia Realty & Develoment Co.
| Decision Date | 03 November 1920 |
| Citation | 226 S.W. 43,205 Mo.App. 474 |
| Parties | NORMAN'S LAND & MANUFACTURING COMPANY, Respondent, v. IDALIA REALTY & DEVELOPMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas.--Hon. John A Snider, Judge.
REVERSED.
Judgment reversed.
Oliver & Oliver and Wammack & Welborn for appellant.
(1) Money paid under a judgment so long as that judgment has not been reversed or set aside cannot be recovered. Greenabaum et al. v. Elliott, Admr, 60 Mo. 25; Smith v. Sims, 77 Mo. 272; Ogden v Railroad, 131 Mo.App. 336; Donnell v. Wright, 147 Mo. 647; Greer v. Major, 114 Mo. 157; Seaman v. Seaman, 181 S.W. 24; Ogden v. Ader, 184 S.W 73; Pitts v. Fugate, etc., 41 Mo. 406; Atkison v. Henry, 80 Mo. 671; Cooper v. Duncan, 20 Mo.App. 359. (2) A judgment is the final determination of the rights of the parties in the action. R. S. 1909, sec. 2090; Bedford v. Sykes, 168 Mo. 14; Knight v. Cherry et al., 64 Mo. 515; Mullin v. Rieger, 169 Mo. 534; Greenbaum et al. v. Elliott Admr., 60 Mo. 31; Hope v. Blair, 105 Mo. 93. (3) By the doctrine of res adjudicata under the broad principles of the law those issues which are germane and should or might naturally have been tendered are precluded by the judgment once for all. Emmert v. Aldright, 231 Mo. 128; Lieber v. Lieber, 239 Mo. 36; McLure v. Bank, 263 Mo. 135; Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 137 Mo. 647; Cantwell v. Johnson, 236 Mo. 603; Greenabaum et al. v. Elliott, etc., 60 Mo. 25; Ogden v. Railroad, 131 Mo.App. 335. (4) When a case is presented the whole case should be presented and, if not, it is nevertheless adjudicated the same as if it had been. Spratt v. Early, 199 Mo. 502; Lilly v. Menke, 143 Mo. 145.
J. L. Fort for respondent.
This is an action for money had and received, plaintiff prevailing below and defendant in due course brings this appeal.
There has been considerable litigation between the parties hereto. The Idalia Company is the owner of a forty acre tract of land which one Norman leased in 1899, and afterwards assigned to Norman's Land & Manufacturing Company, of which corporation said Norman, for the purposes of this case, may be considered as being the owner of practically all of its shares of stock. Norman erected a saw mill thereon, as well as a number of small frame buildings for occupancy by the employees of the mill. In 1904 a dispute arose between Hunter, president of the Idalia Company, and Norman, as to when Norman's tenancy would end under the lease agreement of 1899, resulting in a suit in ejectment wherein the Idalia Company was plaintiff and Norman defendant. This case was determined on appeal by our supreme court in an opinion to be found in 232 Mo. 663, 135 S.W. 47. The Idalia Company also sued Norman for rent and obtained judgment, which case was in due course appealed and is to be found in 184 Mo.App. 146, 168 S.W. 643. A second suit in ejectment was then instituted by the Idalia Company and determined in its favor in the circuit court and said judgment affirmed by our supreme court on appeal. [See Idalia Realty & Development Co. v. Norman, 259 Mo. 619, 168 S.W. 749.]
It is necessary to note that in the second ejectment proceeding it was ordered and adjudged by the court that the Idalia Company have judgment for the profits on the forty acres in question, "and for the sum of $ 700 damages sustained by the plaintiff for the detention of the said premises from the plaintiff by the defendant and for the further sum of $ 100 for the monthly value of the rents and profits of the premises aforesaid from this date and until the possession of the said premises is restored and delivered to the plaintiff . . . ." (Italics ours.) This judgment was entered on the 28th day of March, 1912, and said judgment being affirmed on appeal on the 30th day of June, 1914, said Norman paid said judgment in full, amounting to the sum of $ 3987.01, exclusive of costs.
After the affirmance of the judgment in the said second ejectment suit by the supreme court, but before payment on the said judgment, Norman was informed that the ownership of the several houses which he had placed upon the forty acre tract was in fact in him, and a short time thereafter began removing the said houses from the said tract, whereupon the Idalia Company brought an injunction proceeding to restrain Norman from removing same, and the trial court refusing an injunction, on final hearing, the Idalia Company took the case to the Springfield Court of Appeals by writ of error, where the judgment of the trial court was sustained, resulting in an adjudication that "the said buildings, houses and fixtures were in truth and in fact the property of the said Norman and not the property of the Idalia Company." [See Idalia Realty & Development Co. v. Norman, 183 S.W. 348.]
This brings us to the present litigation. The Norman Company filed this suit to recover of the defendant, Idalia Company, $ 3640 for and on account of rents and profits on the said houses which Norman had placed upon the said tract of land, said sum of $ 3640 being part of the aggregate judgment paid by him amounting to $ 3987.01, as for money had and received to the use of said Norman, alleging that the said Idalia Company should not have recovered in said judgment for the item of damages for rents and profits on said houses an amount exceeding $ 360; and further alleging that "the defense of the ownership of the said houses, buildings and fixtures on the part of Norman was not made in the said ejectment suit because of a mutual mistake of the law on the part of both plaintiffs and defendants in said suit; that if it had not been for said mistake, plaintiffs would have set up and pleaded ownership of said houses in said ejectment suit and would in consequence thereof have reduced the recovery of damages for rent and profits in said suit, up to the time of the payment of the said judgment, to the sum of $ 360; that if it had not been for said mutual mistake of law defendants would not have sought the recovery in said ejectment suit of damages for said rents and profits on said houses, but only on said real estate, exclusive of said houses, and that defendants could not have recovered as damages rents and profits of said real estate exclusive of said houses up to the time of the payment thereof by said Norman on the 15th day of September, 1914, a sum in excess of $ 360."
The petition further avers "that on account of the mutual mistake of law aforesaid, plaintiffs have paid defendants the sum of $ 3640 for and on account of rents and profits on said houses, when in truth and in fact said houses were the property of plaintiffs and not the property of defendants or either of them."
"Premises considered, plaintiffs pray judgment against defendants for $ 3640 as for money had and received by defendants for the use of plaintiffs, together with six per cent interest thereon from the 15th day of September, 1914, and for costs of suit."
The Idalia Company in due course filed a demurrer alleging that said petition does not state facts sufficient to constitute a cause of action, which demurrer was overruled and defendants excepted. The Idalia Company thereupon filed its answer which included, among the several defenses, that the judgment of the circuit court in the said second ejectment suit "is a complete former adjudication and a res adjudicata of all the issues set forth in plaintiff's petition, and of the right of the said Idalia Realty & Development Company to enforce the said judgment and to collect or receive the full amount of damages and the full value of the monthly rents and profits of the said premises as fixed and determined in said judgment, to-wit, of $ 100 per month, and defendants further allege that the said judgment in the said ejectment suit is a full and conclusive bar and estoppel to the rights of the plaintiffs or either of them to recover any money paid to the defendants or either of them under or on account of said judgment or for the right and title of said defendant, Idalia Realty & Development Company, thereto."
The reply contained a denial that the rights sought to be recovered in plaintiff's petition had ever been adjudicated or passed upon in any other court.
At the trial of the case and at the opening thereof counsel for the Idalia Company interposed an objection to the introduction of any testimony in the case "because the petition does not state facts sufficient to constitute a cause of action; because the petition shows on its face that it was merely an effort to recover money that had been paid on a valid judgment of the circuit court of Stoddard county, Missouri, which has never been reversed or set aside; because the judgment is a complete bar and estoppel and a complete adjudication of any right that plaintiff might have or claim to recover in this action; we object to this offering for the further reason that it is an attempt to impeach or explain or to contradict by outside or other testimony this judgment of the circuit court of Stoddard county, Missouri, in the ejectment suit which is the same judgment set out in both plaintiff's petition and the answer of the defendant."
This objection was overruled, and again at the close of plaintiff's case the defendant asked an instruction in the nature of a demurrer which was overruled. Thereupon counsel for defendant, before adducing any testimony, stated "that in order to meet the testimony which has been introduced over objection and exceptions of the defendant, to impeach or contradict or annul the part of the judgment of the circuit court of Stoddard county on which this money was paid, the defendants...
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