Rippe v. Sutter

Decision Date09 July 1956
Docket NumberNo. 45266,No. 1,45266,1
PartiesMary Welday RIPPE, Widow of William Danial Rippe, Deceased, Resident of pocahontas, Randolph County, Arkansas, Appellant, v. Orval C. SUTTER, Public Administrator of St. Louis County, Missouri, Respondent
CourtMissouri Supreme Court

Mary Welday Rippe, pro se.

Stamm, Millar, Neuhoff & Campbell, by David Y. Campbell, St. Louis, for respondent.

COIL, Commissioner.

Plaintiff sought $100,000 actual and $200,000 punitive damages on the theory that defendant, as public administrator of St. Louis County, and another, wrongfully, wilfully, and fraudulently conspired to defraud plaintiff of her property. Defendant's motion to dismiss on the grounds that the petition failed to state a claim upon which relief could be granted, that it disclosed on its face that any claim plaintiff might have was barred by the provisions of Section 516.120, RSMo 1949, V.A.M.S., and that the averred claims were res judicata by reason of two prior final adjudications of the same matters between the same parties, was sustained on the lastmentioned ground. Plaintiff has appealed from the final judgment of dismissal.

Defendant's motion to affirm the judgment or to dismiss the appeal for the alleged reason that plaintiff's brief fails to comply with Supreme Court Rule 1.08, 42 V.A.M.S., was submitted with the case. Plaintiff, a lay woman, appeared below and here, pro se. Her brief and supplemental brief have been inartfully prepared and are technically deficient in some respects. Our examination of them convinces us, however, that she has made a sincere effort to comply with our rules. We have the view that there has been no such violation of our Rule 1.08 as to preclude us, under the circumstances, from considering the appeal on its merits. Defendant's motion is, therefore, overruled.

The trial court's stated reason for dismissing plaintiff's petition was that the matters pleaded were res judicata. If the trial courts's judgment of dismissal was correct, the stated reason therefor was immaterial. Spiking School Dist. No. 71 v. Purported Enlarged School Dist. R-11, 362 Mo. 848, 859, 245 S.W.2d 13, 16. Therefore, and in view of our conclusion that the trial court erred in dismissing the petition, we shall consider all three of the grounds specified in the motion.

The petition, apparently drawn by plaintiff herself, contains much that is surplusage and irrelevant. Construing that petition, however, in the light most favorable to her, it fairly may be said that any claim for relief therein stated was upon the theory that defendant and another conspired to defraud her of property which she allegedly had acquired by reason of the alleged fact that she was the widow of William Danial Rippe and his grantee in certain deeds to St. Louis City and County property.

A careful reading of the petition discloses that its averments, in so far as they are pertinent for present purposes, are: that on August 8, 1945, defendant and another schemed and conspired to and by fraud and bribery 'swindled' plaintiff of her property in that defendant wrongfully and fraudulently caused the filing of two certain suits against instant plaintiff, one in the City and the other in the County of St. Louis; that the city suit was to void the deeds to property located in the city and the county suit was to annul 'the Rippe marriage, to revoke Mr. Rippe's authenticated and recorder Last Will and Testament and to void the Deeds to the County Property'; that on November 10, 1950, the St. Louis County case was adjudicated and the plaintiff's alleged husband's last will was 'revoked' and the 'Rippe marriage' annulled and 'the Deeds voided'; that the judgments adverse to plaintiff in the cases which defendant wrongfully and fraudulently caused to be instituted and maintained were void because their subject matter was not within the jurisdiction of the courts wherein said judgments were entered.

'Plaintiff further states that all of the aforesaid acts of Orval C. Sutter were wrongful, fraudulent, illegal, willful and intentional.' Plaintiff then prayed for actual damages of $100,000 and exemplary damages of $200,000.

Included in the petition are quotations from Missouri statutes, citations of Missouri and Arkansas cases, quotations from the United States Constitution, and certain statements of law.

It would appear that the petition, liberally construed, when stripped of its surplus and irrelevant allegations, and when the imperfections of language therein are ignored, Zuber v. Clarkson Const. Co., 363 Mo. 352, 355, 251 S.W.2d 52, 54, essentially avers: that defendant, as public administrator of St. Louis County, and one Rachael Mohrman conspired to defraud plaintiff of property which was hers as the widow of her deceased husband and as grantee in certain deeds; that defendant, by the commission of overt acts to effect the object of the conspiracy, defrauded plaintiff of that property; that defendant's overt acts were that he wilfully, fraudulently, and wrongfully caused the institution and maintenance of two certain suits which resulted in void judgments which deprived her of the mentioned property; and that those judgments were void because the courts rendering them acted in excess of their respective jurisdictions.

The gist of a civil action based upon a conspiracy is not the fact of the conspiracy but rather the wrong 'done by acts in furtherance of the conspiracy resulting Rathford, 353 Mo. 1130, 1140, 186 S.W.2d 570, 574[1-3]. It is apparent that instant 570, 574 [1-3]. It is apparent that instant defendant is charged with having wronged plaintiff by his acts in furtherance of the averred conspiracy, viz., in causing the institution and maintenance of two suits which resulted in void judgments which deprived plaintiff of her property.

A judgment rendered by a court without jurisdiction of the subject matter is void and may be attacked collaterally by anyone directly interested therein. Harbin v. Schooley Stationery & Printing Co., 362 Mo. 1118, 1125, 247 S.W.2d 77, 80[2, 3]. Thus, it would appear that plaintiff would not be precluded from proving, if she can, that defendant's acts in fraudulently and wrongfully causing the institution and maintenance of the two suits proximately caused the rendition of the void judgments, which resulted in plaintiff's being deprived of her property. Therefore, we may not say as a matter of law that the facts stated in plaintiff's petition might not invoke the application of principles of substantive law which would entitle plaintiff to the relief she has sought. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 1252, 194 S.W.2d 25, 28[4-7].

As heretofore noted, the trial court sustained defendant's motion to dismiss on the stated ground 3 thereof that 'The subject matter of plaintiff's purported cause of action set forth in her petition was also the subject matter of two certain causes filed by this same plaintiff against this same defendant, being causes Nos. 202363 and 205796 of the causes of this Court, in Division No. 5 thereof, wherein the Court entered final judgment against this same plaintiff and in favor of this...

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  • Davis v. Laclede Gas Co.
    • United States
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    ...continuous tort. Rather, the tortious act was completed as a legal injury at the time of the allegedly negligent act. See Rippe v. Sutter, 292 S.W.2d 86, 9011 (Mo.1956). Furthermore, "where a tortious act has been completed, or the tortious acts have ceased, the period of limitations will n......
  • Brennecke v. Kilpatrick
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    ...question counsel seeks to raise, and we do not pass on it. Cf. Roberts v. Epicure Foods Company, Mo.Supp., 330 S.W.2d 837; Rippe v. Sutter, Mo.Sup., 292 S.W.2d 86, 89; Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69, 71; Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d Res......
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    ...a judgment on the ground of fraud. Fitzpatrick v. Stevens, 114 Mo.App. 497, 503(4), 89 S.W. 897, 899(4).3 Sec. 516.100; Rippe v. Sutter, Mo., 292 S.W.2d 86, 90(10); Kohout v. Adler, Mo.App., 327 S.W.2d 492, 494--495; Cf. Chemical Workers Basic Union v. Arnold Sav. Bank, Mo. (banc), 411 S.W.......
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