Ralph v. Annuity Realty Co.

• Decision Date: 03 June 1930
• Docket Number: 28483
• Parties: William F. Ralph, Administrator, et. al., Appellants, v. Annuity Realty Company et al
• Court: Missouri Supreme Court

28 S.W.2d 662

325 Mo. 410

William F. Ralph, Administrator, et. al., Appellants, v. Annuity Realty Company et al

No. 28483

Supreme Court of Missouri

June 3, 1930

Rehearing Overruled June 3, 1930.

Appeal from Circuit Court of City of St. Louis; Hon. M Hartmann, Judge.

Affirmed.

Christian F. Schneider for appellants.

(1) The stipulations of counsel induced a judgment, irregular and without jurisdiction, which is not "due process of law." This appeal came to the Supreme Court not after a final decree, but in the exercise of a special and limited statutory jurisdiction permitting an appeal from an "order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers." R. S. 1909, sec. 2038. Only that phase of the suit as to the appointment of a receiver (pending the proceedings on the merits) was before the Supreme Court under the terms of that statute. The jurisdiction of this court over the cause was not original, but appellate. It was limited by the statute conferring the special jurisdiction to review the order appointing a receiver. The law of appeals limits appellate power to the scope defined by the law itself. That principle has nowhere been more clearly recognized than in Missouri. Robinson v. Walker, 45 Mo. 120; Sidewell v. Jett, 213 Mo. 601; Ramsey v Huck, 267 Mo. 333. Anything outside of the limits of the appellate jurisdiction would be coram non judice and void. Marks v. McElroy, 67 Miss. 545; Hunt v. Searcy, 167 Mo. 180; In re Strom's Est., 134 Mo.App. 347; Reynolds v. Stockton, 140 U.S. 254. This court, on an appeal from such an interlocutory order as is here, has no authority to decide the whole case on the merits. Consent would not create that jurisdiction. And at a later term it could properly be set aside as void. Clark v. Arizona Assn., 217 F. 643; Bank v. Association, 220 F. 6; Oil Co. v. Missouri, 224 U.S. 170; Vicksburg v. Henson, 231 U.S. 269. The stipulations go far beyond the order appointing the Receiver which alone was the subject-matter of the appeal. They attempt to deal with other phases of the suit on the merits, not within the purview of the appeal, which was on a special interlocutory order; and was limited to the review of that order. Campbell v. Consalus, 2 N.Y. 616; 12 Ency. Pl. & Pr. 189; Hooe v. Barber, 4 Hen. & M. 439; Crane v. Barry, 47 Ga. 476; Weatherbee case, 20 Wis. 499; Main v. Ginthert, 92 Ind. 180; Hursh v. Hursh, 99 Ind. 503; Naylor v. Sidener, 106 Ind. 183; Gray v. Oughton, 146 Ind. 285; Levin v. Florsheim, 161 Ind. 457; Tuttle v. Blow, 163 Mo. 625. (2) The judgment on the stipulation was founded on error of fact in assuming authority therefor. The error of fact was in assuming authority for the stipulations in this court, which not only reversed the trial court's order appointing a receiver, but "compromised" the entire suit, and made specific agreements on the merits, which could only be valid if made by the parties themselves; and which counsel had no authority (as such) to conclude. The stipulations involved agreements for adjusting the whole controversy in suit, and are intended to "compromise" the same, in the Supreme Court, whereas the jurisdiction only reached the issue as to the appointment of a receiver for appellant. Apart from the fact that this court had no jurisdiction, on this interlocutory appeal, to go beyond the scope thereof to dispose of the suit on its merits, it also seems clear that the signatures of the parties themselves were necessary to validate such stipulations, attempting to compromise and settle the whole litigation; because counsel, as such, do not have power to do so. Davidson v. Rozier, 23 Mo. 387; Holker v. Parker, 7 Cranch, 456; Huston v. Mitchell, 14 S. & R. 307; Dodds v. Dodds, 9 Pa. St. (9 Barr) 315; Spears v. Ledergerber, 56 Mo. 465; Houx v. Russell, 10 Mo. 247; Walden v. Graham, 55 Mo. 405. If this defect is one of fact, it is within reach of this motion in the nature of a writ coram nobis. If it can be interpreted as a defect in the record, then it is an irregularity within the remedial reach of Section 2121. In either aspect, it appeals for the relief which this court only is in position to grant with free hand. Jeude v. Sims, 258 Mo. 41. Such matter "can only be corrected in the court where it occurred." Calloway v. Nifong, 1 Mo. 223. In such circumstances the remedy should be regarded as one of right, and not merely of absolute discretion. State v. Elkin, 130 Mo. 90; State v. Hirzel, 137 Mo. 433. But, as to the want of jurisdiction, that defect may be shown at any time, even collaterally. Shuford v. Cain, Fed. Cas. No. 12,823. Motion is the modern mode to correct such irregular or void proceedings. State v. Riley, 219 Mo. 667; United States v. Mayer, 235 U.S. 67. (3) As to Gus Ralph, the stipulations were void. He was dead when counsel assumed to consent for him to those stipulations. Whatever prior power existed was revoked by his death, and to proceed to adjudge the rights of his estate, without a representative, is an error of fact warranting correction here. Cross v. Gould, 131 Mo.App. 597; Powell v. Gott, 13 Mo. 458; Edwards v. Watson, 258 Mo. 638; Holmes v. Honie, 8 How. Pr. 381. It is not alone the fact of his death which appeals for the remedy prayed, but the stipulations covered agreements which are not valid without the consent of all parties, even if this Court had jurisdiction outside the issue made by the interlocutory appeal. Affirmative assent (as to Ralph's interest) was essential to make the stipulations complete or valid; for, without the assent of all interested, there would be no basis and no consideration for them. They would bind nobody. Their terms show that. They certainly should not be held to bind the estate of the deceased plaintiff by the act of his former counsel, whose authority to represent and whose powers as attorney were terminated by Gus Ralph's death. This is no new doctrine. Weeks, Attorneys (2 Ed.) secs. 256, 185, 248; Judson v. Love, 35 Cal. 463; Whitehead v. Lord, 7 Exch. 691; Prior v. Kiso, 96 Mo. 303; Bostick v. McIntosh, 213 S.W. 456; Gleason v. Dodd, 4 Met. 333.

Nagel & Kirby, Bryan, Williams & Cave, Wilfley, Williams, McIntyre & Nelson, Lewis & Rice and Charles P. Williams for respondents.

(1) This court will take judicial notice of matters appearing in another case before it, and of its own records and proceedings in actions formerly pending before it. Keaton v. Jorndt, 259 Mo. 189; Meyer v. Goldsmith, 196 S.W. 745; State ex rel. Jones v. Miller, 221 S.W. 89; State ex rel. Penath v. Hamilton, 240 S.W. 449; Custer v. Kroger, 313 Mo. 130. (2) "There was neither fraud nor want of authority in the attorneys to make the stipulations authorizing this court to enter" its decree of February 5, 1919. Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 455. (3) "The Zeitingers and all the other stockholders, then actual parties to this suit, consented . . . to the stipulations and consent decree of this court before it was made, and afterwards the Zeitingers, in writing, ratified the action of their attorney, Julian Laughlin, in signing all such stipulations." Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 455. (4) The Zeitinger receivership suit was a class suit in which, after the death of Gus Ralph, the Zeitingers represented all of the stockholders, including those not parties of record, and the action of the Zeitingers and interveners in settling the case with the sanction of this court, bound the Ralphs and all other stockholders, whether parties to the suit or not. Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 454; Kaufmann v. Annuity Realty Co., 301 Mo. 662. (5) The judgment and mandate of February 5, 1919, were not void for lack of jurisdiction in this court to render and issue them. Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 456. (6) The contentions made in support of the motion sought to be filed in February, 1920, in Division 2 of this court in the original Zeitinger case, by the attorney for Gus Ralph's administrator, to set aside the judgment of February 5, 1919, which motion and supporting brief are embodied in appellants' brief herein, were rejected by this court at the time. They were also a part of the record in the Zeitinger appeal, and must have been considered by this court in the Zeitinger appeal. Notwithstanding which, the decision and order of the circuit court was affirmed. (7) The death of Gus Ralph did not render void the subsequent judgment and mandate of this court. Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 454. (8) The demurrers were good on the additional grounds: (a) There is another similar cause of action pending. Kaufmann v. Annuity Co., 301 Mo. 638. (b) The assets of the Dry Goods Company are in custodia legis under the mandate of this court. Lewis v. Hargadine-McKittrick Co., 305 Mo. 414. (c) The alleged cause of action sued upon was res adjudicata. Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 433.

OPINION

Ragland, J.

On the 18th day of December, 1915, there was filed in the Circuit Court of the City of St. Louis, a suit in equity styled Christian J. Zeitinger et al., plaintiffs, v Hargadine-McKittrick Dry Goods Company et al., defendants. The plaintiffs were said Christian J. Zeitinger, George E. Zeitinger and Gus Ralph: the defendants were the Hargadine-McKittrick Dry Goods Company, a corporation, its officers and directors and other persons and corporations alleged in the petition to have benefited through a diversion and misappropriation of the corporation's assets. The suit was brought by the plaintiffs as stockholders of the Dry Goods Company for the benefit of said corporation and other stockholders similarly situated: the petition charged that certain officers of the Dry Goods Company, defendants in the suit, had...