Rehm v. Fishman

• Citation: 395 S.W.2d 251
• Decision Date: 21 September 1965
• Docket Number: No. 31840,31840
• Parties: Donald REHM, d/b/a Guaranty Cycle Company, Plaintiff-Respondent, v. Robert A. FISHMAN, Defendant-Appellant, Security Trust Company, Garnishee.
• Court: Court of Appeal of Missouri (US)

Page 251

395 S.W.2d 251

Donald REHM, d/b/a Guaranty Cycle Company, Plaintiff-Respondent, v. Robert A. FISHMAN, Defendant-Appellant, Security Trust Company, Garnishee.

No. 31840.

St. Louis Court of Appeals, Missouri.

Sept. 21, 1965.

Louis M. Kohn, St. Louis, for garnishee.

Klamen & Grand, Marvin M. Klamen, Clayton, for defendant-appellant.

Flynn, Parker & Badaracco, Joseph L. Badaracco, St. Louis, for plaintiff-respondent.

ANDERSON, Judge.

This is an appeal from an order and judgment of the Circuit Court of St. Louis County quashing an execution and garnishment in aid thereof issued at defendant's request.

It appears from the transcript that on December 29, 1961, plaintiff Donald Rehm brought an action against defendant Robert A. Fishman in the Circuit Court of St. Louis County. In said suit, plaintiff the lessor of certain premises let to defendant, by his petition sought to recover the balance alleged to be due him on bicycles and allied parts placed by plaintiff with defendant on consignment; the balance alleged to be due on the purchase price of bicycles purchased by defendant from plaintiff; and the amount paid by plaintiff on defendant's behalf for utilities used on the premises; less the reasonable value of the stock of bicycles and allied equipment on the premises as of October 31, 1961, which was applied to defendant's debt. The balance alleged to be due plaintiff was the sum of $6,854.11, for which amount, plus interest, plaintiff prayed judgment.

On January 29, 1962, plaintiff filed his answer and counterclaim. In said counterclaim, conversion of defendant's property by plaintiff was alleged, for which judgment was prayed for in the amount of $8,000.00 actual and $20,000.00 punitive damages.

The case came on for trial on January 16, 1963, and at the close of plaintiff's case the Court directed a verdict for plaintiff on his cause of action for the principal sum of $6,804.11 together with interest thereon from October 31, 1961 at six percent or a total for $7,299.79. The case on the counterclaim was submitted to the jury, and resulted in a verdict of $1,400.00 actual damages and punitive damages in the sum of $3,900, or a total of $5,300.00. This verdict was returned January 18, 1963. Thereafter, there appears in the transcript the following:

'JUDGMENTS

'THEREAFTER and on January 18, 1964, the following judgments were entered of record in the Office of the Circuit Clerk, County of St. Louis (at Clayton), Missouri:

"Now again at this day come the parties hereto in person and by their respective attorneys and come also the Jurors in this behalf, empaneled and sworn, and the trial of this cause is resumed, progressed and at the close of Plaintiff's case, plaintiff's motion for directed verdict hereto filed and submitted herein, having been duly and fully considered is now by the Court hereby sustained. Court finds the issues herein joined in favor of the Plaintiff and against the defendant in the sum of $6,804.11 together with interest thereon from October 31, 1961 at 6% per annum in the sum of $495.68, or a total Judgment for $7299.79.

"Trial of the cause again resumed on Defendant's Counterclaim, progressed and concluded, the Jurors aforesaid, upon their oath aforesaid, return into Court the following verdict: DONALD REHM, DOING BUSINESS AS GUARANTY CYCLE COMPANY, Plaintiff vs. ROBERT A. FISHMAN, Defendant, Cause No. 244544, DIVISION NO. 8, VERDICT: 'We, the Jury in the above cause, find in favor of the defendant and against the plaintiff on the issues herein joined and assess defendant's actual damages at the sum of $1,400.00 Dollars. And we further assess the defendant's punitive damages at the sum of $3,900.00 Dollars, aggregating the sum of $5,300.00 Dollars.' / s/ Kenneth R. Suter, Foreman, Ralph J. Santel, Anthony J. Yanoschek, Vernon Elliott, H. J. Williams, Bernetta Matheny, Wesley K. Bartlett, N. Constantino, Irene G. Peters, Jessie C. Busch and Elizabeth T. Wahl.

"WHEREFORE, it is ordered and adjudged by the Court that said Plaintiff have and recover of said defendant the sum of Seven Thousand Two Hundred Ninety Nine Dollars and 79/100 ($7,299.79) Dollars, together with interest thereon from this date at the rate of six per centum per annum and also the costs herein incurred.

"Further ordered by the Court that Defendant have and recover of said Plaintiff the sum of Fourteen Hundred and no/100 ($1400.00) Dollars actual damages and Three Thousand Nine Hundred and no/100 ($3900.00) Dollars, punitive damages, or a total sum of Five Thousand Three Hundred and no/100 ($5300.00) Dollars assessed by the Jury as aforesaid, together with interest thereon from this date at the rate of six per centum per annum. Verdict and instructions filed."

On January 31, 1963, plaintiff filed his motion for judgment or in the alternative for a new trial. On February 2, 1963, defendant filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial.

The above motions were not acted upon by the Court within 90 days of the filing thereof, and therefore, pursuant to Civil Rule 78.04 were deemed overruled at the end of said period. Both parties appealed to this Court. However, these appeals were withdrawn on December 3, 1963.

On January 3, 1964, a request for Execution and Garnishment against Security Trust Co. was filed by defendant, Robert A. Fishman. Thereupon an Execution and Garnishment was issued for the sum of $5,300.00. Thereafter, on January 7, 1964, plaintiff filed his motion to quash said Execution and Garnishment. The grounds alleged in said motion were that since there was a net judgment in favor of plaintiff against defendant in the sum of $1,999.79, it would be inequitable and wholly improper that said Execution and Garnishment be issued. On January 15, 1964, said motion was sustained. From this order defendant has appealed.

Appellant's first point is that since the trial court had jurisdiction of the subject matter and the parties, its judgment is not subject to collateral attack; that plaintiff's motion to quash the Execution is a collateral attack on the Court's judgment as entered and for that reason said judgment must be sustained; therefore, the Court erred in sustaining plaintiff's motion to quash the defendant's execution and garnishment.

A judgment is the judicial act of the Court and its entry upon the record is the ministerial act of the Clerk....