Robinson v. Bobb
| Decision Date | 25 May 1897 |
| Citation | 40 S.W. 938,139 Mo. 346 |
| Parties | Robinson, Appellant, v. Bobb et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
Stone & Slevin for appellant.
(1) The action of the circuit court in overruling a motion to set aside a judgment will be reversed if it appear that injustice has been done, the court has acted arbitrarily, shown an unjudicial bias, or abused its discretionary powers. Whitsett v. Ransom, 79 Mo. 258; Warner Bank v Clement, 58 N.H. 533; Hamilton v. Yocum, 108 Pa. St. 304; Merrill v. Burns, 66 Mo. 227; Gilstrap v. Felts, 50 Mo. 428; Smith v Wheeler, 27 Mo.App. 16; Weisenborn v. Newman, 60 Cal. 376. (2) The discretion exercised in vacating or setting aside a judgment is a legal discretion to be exercised in conformity with law. Baily v. Taafe, 29 Cal. 422; Schoonmaker v. Albertson, 51 Conn. 387; Johnson v. Eldred, 13 Wis. 342. (3) Upon motion to dismiss a cause a fair and reasonable opportunity ought to be granted to parties to be fully heard, and a full hearing ought to be had, in order that the court may arrive at a just conclusion. Stencil v. Gay, 92 N.C. 955. (4) The court sustained the motion of defendants to dismiss said cause and entered up a decree upon a stipulation made by plaintiff, although at the time said motion was presented and at the first hearing thereof, plaintiff's attorney was present at plaintiff's request, asking that said hearing be laid over or continued, to give the plaintiff and his attorneys time to investigate said matter further before any final action should be taken by the court thereon. This was undue haste and an arbitrary exercise of the power of the court -- the exercise of an "unjudicial discretion."
T. J. Rowe for respondents.
(1) The record shows that the motion for a rehearing was not filed within four days after the judgment, but was filed thirty-five days thereafter; therefore there is nothing to review on this appeal. R. S. 1889, sec. 2243; State v. Brooks, 92 Mo. 591; Allen v. Brown, 5 Mo. 323; Welsh v. St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523; State v. Marshall, 36 Mo. 400. (2) The record herein shows that plaintiff had no meritorious case against defendants, and that this action was prosecuted in the interest of persons whose names do not appear in the record, solely and only to annoy and harass defendants. "Every action shall be prosecuted in the name of the real party in interest." R. S. 1889, sec. 1990. (3) Neither plaintiff nor his attorneys under oath stated that plaintiff had a meritorious cause of action; nor did the attorneys say that they knew plaintiff before the institution of this suit, or that they had authority from him to institute it, or that he knew anything about it; and they did not state who authorized them to institute the suit.
This is a suit in equity to set aside certain conveyances of real estate in the city of St. Louis, as having been made in fraud of creditors.
The circuit court, in pursuance of a stipulation, dismissed the plaintiff's bill and rendered judgment for the defendants. After an ineffectual motion to set aside the order of dismissal and reinstate the case, plaintiff appeals to this court and assigns as error the action of the circuit court in overruling the motion to set aside the judgment of dismissal and reinstate the case.
On December 19, 1894, the plaintiff, a resident of the State of Illinois, by his attorneys, Stone & Slevin, commenced the present suit. The petition alleged, among other things, that Woodville Bates, in October, 1884, obtained a judgment against defendant John H. Bobb, in the probate court of the city of St. Louis, for $ 22,393.97; and that on the same day Lulu C. Rippey also obtained judgment against said Bobb for $ 1,007.17; that in pursuance of executions issued on said judgments the sheriff of the city of St. Louis levied upon certain real estate as the property of John H. Bobb, one of the defendants; and that the real estate so levied upon was purchased by the plaintiff at the sheriff's sale, and said sheriff thereupon, in pursuance and completion of said sale, duly executed, acknowledged and delivered to plaintiff a conveyance of said real estate and thereby plaintiff then and there became and is now the owner of all the lots above described. The petition also charges that on the sixteenth day of September, 1884, defendant Bobb executed certain conveyances of said property without any consideration therefor, which plaintiff alleges were fraudulent, and which he seeks to have set aside and the title vested in him.
It will be observed that it is not alleged in the petition that the plaintiff holds the property in trust or occupies the relation of trustee in respect thereto.
The answer was a general denial. The stipulation on which the court below acted in dismissing plaintiff's bill, omitting caption and signature, is as follows:
"Now comes the plaintiff, Henry Robinson, in the above entitled cause and states that he has learned that said cause was instituted on the nineteenth day of December, 1894, without his authority, knowledge, consent, approval, or acquiescence, directly or indirectly; hence, he hereby requests the court to enter up a final judgment in bar at once in this case, in favor of all the defendants, to end forever all controversy on his part against said defendants."
It bears date January 30, 1895, is signed and verified by him.
On the fourth day of February, 1895, defendants filed said stipulation, together with their motion for judgment thereon, and on the same day gave plaintiff's attorneys, Stone & Slevin, notice that on February 6, 1895, at ten o'clock A. M., or as soon thereafter as counsel could be heard, they would apply to the court for judgment in accordance with the stipulation.
The motion came up for hearing before Judge Klein on February 7, 1895, Elijah F. Stone, of counsel for plaintiff, appearing in opposition thereto, asked the court to continue the hearing until he could have an opportunity to confer further with the plaintiff and investigate the matter, stating, in substance, that he was authorized by Charles Bobb to bring this suit in the name of the plaintiff; that a letter had been written to plaintiff to permit suit to be brought in his name but plaintiff had declined to do so; that he had seen the plaintiff on the morning of the day the motion was set for hearing, for the first time since the motion was filed and that a meeting between plaintiff and his counsel had been arranged for 3 o'clock in the afternoon of that day at the office of Col. MacDonald, to complete negotiations to permit the suit to be conducted in plaintiff's name. The court refused to postpone the hearing, sustained the defendant's motion, and entered judgment accordingly.
On March 14 following, plaintiff filed a motion to set aside the judgment of dismissal and reinstate the case, on the ground "that the stipulation upon which the judgment was based was made by plaintiff without being fully informed as to the facts in the matter, and under a misapprehension and mistake as to the nature of the case; and that the judgment, if allowed to stand, would bar any other proceedings on the part of the plaintiff against defendants touching the property in controversy, to the damage of the parties for whom plaintiff holds the title in trust." In support of this motion plaintiff filed the following affidavit:
"Now comes the plaintiff, Henry Robinson, in the above entitled cause, and states that when he made the affidavit, embodied in the motion heretofore filed in this cause, sworn to by him on the thirtieth day of January, 1895, before Frank R Dillman, notary public, and wherein it was stated by him, that the above suit 'was instituted on the nineteenth day of December, 1894, without his authority, knowledge, consent, approval or acquiescence, directly or indirectly,' and wherein he requested the court to enter up a final judgment in bar at once in this cause in favor of all the defendants, he was not properly informed regarding the facts in the matter and that said affidavit was made under a misapprehension and without due consideration on his part, and remembering the fact that the same suit and cause of action had been brought in his name before, and about the same property, and thinking that the same matter had been fully settled up in said former suits, and believing that his connection had terminated with the other suits, and that this suit was in nowise connected with the said former suits; and that now being informed of the real nature of the suit, and that he bears the same relation to the said property, in the petition described, as he sustained before, he now desires to hereby correct the mistake he has made in making said affidavit and have said cause of action reinstated in order that the merits of the same may be determined, and the matter fully adjudicated as the parties interested may desire, and that all matters between said parties concerning said property may be satisfactorily settled; that being now fully informed he states that the above suit was properly instituted in his name, and that if he had been properly informed and his memory had served him correctly at the time he made said affidavit he would have not done so, and he now desires to correct and withdraw the same; that he was requested and induced to execute said affidavit at Venice, Illinois, by John H. Bobb, and without having advised with counsel concerning same, or without knowing or having been informed that said John H. Bobb was one of defendants in said cause; that he holds the title to said property in fee, yet in...
To continue reading
Request your trial