Ripley v. Bank of Skidmore

• Decision Date: 13 January 1947
• Docket Number: 39980
• Parties: Alice Ripley, Daphne Dysart, Susie Summers, Faye Joplin, Fern Randal, Beatrice Bundy, and Dorothy Bundy, Appellants, v. Bank of Skidmore, a Corporation, William S. Linville, C. E. Linville and Lewis Garnett
• Court: Missouri Supreme Court

198 S.W.2d 861

355 Mo. 897

Alice Ripley, Daphne Dysart, Susie Summers, Faye Joplin, Fern Randal, Beatrice Bundy, and Dorothy Bundy, Appellants, v. Bank of Skidmore, a Corporation, William S. Linville, C. E. Linville and Lewis Garnett

No. 39980

Supreme Court of Missouri

January 13, 1947

Appeal from Nodaway Circuit Court.

Reversed and remanded (with directions).

Horace Merritt, C. W. Prince and Wm. Dennis Bush for appellants.

Where a person by his fraud and as the direct and proximate result thereof has involved another in lawsuits then the tort feasor in an action against him for the tort is liable for the costs and expenses of such litigation, including reasonable attorney's fees necessarily incurred by the person defrauded in the effort to reduce his damages or avoid loss resulting from the fraud. Boyles v. Burnett, 249 S.W. 719, 213 Mo.App. 288; Myers v. Adler, 188 Mo.App. 607, 176 S.W. 538; Bank v. Williams, 62 Kan 431; Stiles v. Morse, 233 Mass. 174, 123 N.E. 615; Feldmesser v. Lemberger, 101 N.J.L. 184, 127 A. 815; Beranistetal v. Kreidler, 158 Minn. 127, 196 N.W 964; Hilgendorf v. Schuman, 232 Wis. 625, 288 N.W 184 and cases cited.

C. B. DuBois and E. R. Redman for respondents.

(1) Courts take judicial notice of their records and opinions in the same cause and included by reference in the petition in the instant case. Bennett v. Metropolis Co., 148 S.W.2d 109; Houck v. Little River Drain. District, 344 Mo. 28, 119 S.W.2d 826; Siemers v. St. Louis Co., 343 Mo. 1201, 129 S.W.2d 865. (2) Respondents' conduct to be actionable must have been without probable cause and the petition, together with the reported cases of the appellate courts referred to therein, conclusively show respondents' actions to have been with probable cause. Laughlin v. St. Louis Union Trust Co., 50 S.W.2d 92; Crescent City Co. v. Butchers Co., 120 U.S. 141, 30 L.Ed. 614, 7 S.Ct. 472; 34 Am. Jur., pp. 706, 730, 732, 739, 740, 769; Lawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43. (3) To be actionable respondents' actions must have been maliciously done. On the face of the petition and the records and the reported cases incorporated therein, respondents' litigations were not commenced and had maliciously and show an honest effort to collect by judicial proceeding an obligation due on a written instrument. Randol v. Kline's, Inc., 322 Mo. 46, 18 S.W.2d 500; Poke v. M., K. & T. Railroad Co., 346 Mo. 793, 142 S.W.2d 1061; 34 Am. Jur., sec. 2, p.. 703. (4) Mere conclusions of the pleader and law stated in the petition are not actionable in themselves, especially where they are inconsistent with the facts alleged and shown from the court's records incorporated in appellants' petition. Walrath v. Crary, 222 S.W. 895; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W.2d 803; 41 Am. Jur., sec. 16, pp. 300, 302, sec. 18, p. 305; Meyer v. Milligan, 175 S.W.2d 924. (5) No cause of action is alleged in appellants' petition. The facts alleged, if actionable, constitute a tort against John A. Ripley in his lifetime and against his administrator and said cause of action, if any, does not survive, and pass to appellants who are his widow and heirs. Vitale v. Duerbeck, 92 S.W.2d 691; Wass v. Hammontree, 77 S.W.2d 1006; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 76. (6) Appellants' alleged cause of action states a series of separate and independent torts, each and all more than five years before the commencement of this action and are all barred by the five year Statute of Limitations, except the action of respondent, W. S. Linville, to recover the purchase price of the land paid by him and for an accounting and which was following the express direction of the Supreme Court in the quiet title case. This appearing on the face of the petition and record is properly raised by motion to dismiss. Sec. 1014, R.S. 1939; Bennett v. Metropolis Co., 148 S.W.2d 109; Burrus v. Cook, 215 Mo. 496; 34 Am. Jur., p. 92, sec. 113, p. 126, sec. 160; Terminal Railroad v. Schmidt, 182 S.W.2d 74; Bisesi v. Farm & Home, 231 Mo.App. 897, 78 S.W.2d 871.

Douglas, J. All concur except Conkling, J., not sitting because not a member of the Court when the cause was submitted.

OPINION

DOUGLAS

Plaintiffs' petition for malicious prosecution carried on by a series of successive civil proceedings was dismissed for the reason it failed to state a claim upon which relief could be granted, and they have appealed.

This case grows out of a persistent effort on the part of the Bank of Skidmore to collect an alleged claim on a note by a series of proceedings ultimately directed against plaintiffs' eighty-acre farm. The petition is too long to be set out. It recounts each of the suits in the series, and charges the defendants with a design or scheme to use them maliciously and without probable cause for the purpose of extorting money or land from the plaintiffs.

The series of suits commenced with the bank's filing a suit on a note against John A. Ripley. Ripley has signed the note without receiving any consideration. 84 S.W.2d 185. Summons was attempted to be served while he was in his last illness and insane, and the bank took a default judgment which was void. Shortly thereafter, Ripley died leaving Alice Ripley, his widow, and the other plaintiffs as his heirs who inherited the eighty-acre farm. Defendants Wm. S. Linville is an officer and agent of the bank and C. E. Linville is its cashier.

Some time after Ripley's death the bank filed a claim against Ripley's estate on the void default judgment, and later obtained an order for the sale of the farm to satisfy the claim. These plaintiffs by a writ of error coram nobis succeeded in having the default judgment set aside, the Kansas City Court of Appeals holding it was void ab initio. A mandamus suit instituted by the bank in the court of appeals followed, which was decided against the bank. Then the bank filed suit against Bartram, administrator de bonis non of the estate of John A. Ripley, seeking to recover on the note and default judgment, which it lost. However, the bank continued to press its claim through the order of sale it had obtained in the probate court and had the farm sold. The farm was purchased by an officer and agent of the bank, W. S. Linville. Then Linville brought suit against the present plaintiffs to quiet title to the farm. Linville lost this case on appeal and his deed to the farm from the administrator was cancelled. Then Linville sought to recover from the administrator the sum he had paid for the farm, and to obtain a lien against the farm and an order to sell it to satisfy the lien. Linville ultimately lost this suit. The plaintiffs appear to have been subjected to continuous litigation for eleven years, from 1932 to 1943. The reported cases which represent but a part of the bank's use of the courts in its campaign to collect its void judgment are: Bank of Skidmore v. Ripley, Admx. (Mo. App.), 84 S.W.2d 185; State ex rel. Bank of Skidmore v. Roberts, Special Judge, 232 Mo.App. 1220, 116 S.W.2d 166; Bank of Skidmore v. Bartram, Admr. (Mo. App.), 142 S.W.2d 657; Linville v. Ripley, 347 Mo. 95, 146 S.W.2d 581; Linville v. Ripley, 237 Mo.App. 1275, 173 S.W.2d 687.

The contention is made that the petition, and these reported cases themselves, show that the various proceedings were initiated with probable cause to believe they were legally just and proper. If the petition does show that such was the case, its dismissal was proper because want of probable cause is an essential element of an action for malicious prosecution in civil proceedings, as well as in criminal. Alexander v. Harrison, 38 Mo. 258.

In advancing this contention it is argued the judgment obtained in the first proceeding, the case brought by the Bank of Skidmore against John A. Ripley, even though a default judgment, is conclusive evidence of probable cause. The rule is that a judgment or finding in favor of the plaintiff in the original action is conclusive evidence of probable cause, or estops defendant therein from denying the existence of probable cause, in the absence of fraud or other improper means used in obtaining the judgment or of evidence that the parties responsible for the prosecution of the action did not believe the testimony which induced the judgment. Moreover, the conclusiveness of a judgment on the question of probable cause is not ordinarily affected by the fact it is found to be erroneous, or is reversed, or is set aside for irregularity, on appeal to a higher court. Laughlin v. St. Louis Union Trust Co., 330 Mo. 523, 50 S.W.2d 92; Contra: Restatement Torts, Vol. 3, sec. 674.

But if the judgment is obtained in an ex parte proceeding it is not evidence of probable cause. In the Restatement of Torts, Vol. 3, sec. 674, page 445, we find under the title Wrong Initiation of Civil Proceedings: "Under the rule stated in this Section, an action may be maintained for the wrongful initiation of ex parte proceedings without proving that they have terminated in favor of the person against whom they were brought. Proceedings are ex parte when relief is granted without an opportunity for the person against whom the relief is sought to be heard." And see 38 C.J. Mal. Pros., sec. 129. Since the judgment in Bank v. John A. Ripley was obtained by default in a proceeding which was in fact ex parte, the general rule is not applicable and the default judgment is no evidence of probable cause.

The default judgment is no evidence of probable cause for another reason. It was not merely erroneous or irregular, it was void ab initio. Certainly a void judgment may not be held to be evidence of probable cause. "No conclusive effect can be given to a judgment which is absolutely void . . ." 34 C.J. Judgments, sec. 1310. Nor does a void judgment have any effect as...