Rookery Realty, Loan, Investment & Building Company v. Johnson

• Decision Date: 16 June 1922
• Parties: ROOKERY REALTY, LOAN, INVESTMENT & BUILDING COMPANY and JOSEPH GERARDI v. JAMES B. JOHNSON and GEORGE MEISINGER, Substitute Trustee, Appellants
• Court: Missouri Supreme Court

243 S.W. 123

294 Mo. 461

ROOKERY REALTY, LOAN, INVESTMENT & BUILDING COMPANY and JOSEPH GERARDI v. JAMES B. JOHNSON and GEORGE MEISINGER, Substitute Trustee, Appellants

Supreme Court of Missouri, First Division

June 16, 1922

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Modified and affirmed.

John A Gilliam for appellants.

(1) The court erred in hearing this case while prior suits involving the same causes of action were pending. 1 Chitty on Pleadings, pp. 454-455; Smock v. Graham, 1 Blackf. (Ind.) 314; Buffum v. Tilton, 17 Pick. 510; Frogg v. Long, 3 Dana, 159; Rogers v Haskins, 15 Ga. 270; Parker v. Colcord, 2 N.H 36; Beach v. Norton, 8 Conn. 71. (2) The court erred in enjoining the prosecution of Case No. 29845 then pending. Carthage Natl. Bank v. Poole, 160 Mo.App. 141; State ex rel. v. Riley, 127 Mo.App. 469; Pettus' Admr. v. Elgin, 11 Mo. 411; Mellier v. Bartlett, 89 Mo. 137; McDonald v. Tieman, 17 Mo. 603; Gilbert v. Renner, 95 Mo. 151; Ray v Phosphate Co., 59 Fla. 598. (3) The suit was multifarious and could not stand. Statcup v. Garner, 26 Mo. 72; Alexander v. Warrance, 17 Mo. 228; Robinson v. Rice, 20 Mo. 229. Several injuries cannot be joined in chancery any more than at law. Clamorgan v. Guisse, 1 Mo. 141; Berry v. Robinson, 9 Mo. 276; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142; McLaughlin v. McLaughlin, 16 Mo. 242; Ferguson v. Paschall, 11 Mo. 267. 5 Words & Phrases 4616-4618. (4) This case was an effort to get a new trial before Judge Shields of two cases previously tried by Judge Taylor and then pending on appeal in the Supreme Court, and those cases on appeal were not dismissed until October 25, 1920, long after Judge Shields rendered his decree in this case. 1 Cyc. 21, note 9. Vexatiousness is a conclusion of law drawn from the fact of two suits brought by one person against another for one cause and pending at the same time. 1 Bac. Abr. 13; Napier v. Foster, 80 Ala. 379; Jones v. McPhillips, 82 Ala. 102; Gamsby v. Ray, 52 N.H. 513. The pendency of a prior action upon appeal or writ of error defeats a second action between the same parties for the same cause. Fisk v. Atkinson, 71 Cal. 452; McJilton v. Love, 13 Ill. 486, 54 Am. Dec. 449; Merritt v. Richey, 100 Ind. 416. (5) The suit was to restrain a sale under a deed of trust past due when there was no dispute as to the amount due and no tender of the amount due, but a false claim that Johnson had alleged usury to have been exacted, which claim was promptly abandoned by plaintiffs when the trial began. Plaintiffs were bound to tender amount admitted to be justly due. Holmes v. Building & Loan Assn., 189 Mo.App. 102; Williams v. Troy, 39 Ala. 118; 27 Cyc. 1454; McDaniel v. Springfield Waterworks Co., 48 Mo.App. 273; High on Injunctions (4 Ed.) secs. 443-447. (6) The suit was a collateral attack on the decision of the Supreme Court in Beattie Mfg. Co. v. Annie Gerardi and plaintiffs had no interest therein, and it could not be done, and the naming of usees was mere surplusage in the Beattie Mfg. Co. Case. Burke v. City of Kansas, 118 Mo. 309; Beattie Mfg. Co. v. Gerardi, 214 S.W. 189; Smith v. Vandalia Railroad, 188 Ill.App. 429; Norcross Mfg. Co. v. Summerour, 114 Ga. 364; Mut. Life Ins. Co. v. Allen, 113 Ill.App. 96, 212 Ill. 134; Northrope v. McGee, 20 Ill.App. 108; Schiff v. Supreme Lodge Order, 640 Ill.App. 341; Howes v. Scott, 224 Pa. St. 12; Tedrick v. Wells, 152 Ill. 214; Hobson v. McCambridge, 130 Ill. 367; Henderson v. Welch, 8 Ill. 340; Cohen v. Schultz, 73 Ill.App. 244; Mathis v. Fordham, 114 Ga. 364; Scott v. Granger, 3 Iowa 447; Farwell v. Dewey, 12 Mich. 436; Sisson v. Railroad, 14 Mich. 489; Jones v. Railroad, 75 Miss. 913; Fidelity & Deposit Co. v. Nisbet, 119 Ga. 321; Fay v. Guynon, 131 Mass. 34; Berry v. Gillis, 17 N.H. 9; Wolffe v. Eberlein, 74 Ala. 99; Schley v. Lyon, 6 Ga. 530; Chadsey v. Lewis, 6 Ill. (1 Gilman) 153; Clarkson v. Doddridge, 14 Gratt. 42; McCormick v. Fulton, 19 Ill. 570. (7) There was no cause of action stated in the petition. Haley v. Branham, 192 Mo.App. 130. (a) Injunction will not lie because of the sale of the interest of Annie Gerardi in land which may be owned by either plaintiff by antecedent title of record. Good v. Merkowitz, 35 Mo.App. 658. (b) Equity has no jurisdiction in matter of cloud on title to stocks, but is limited to cloud on real estate. State ex rel. v. Wood, 155 Mo. 425. (c) Injunction will not lie where the injurious act has already been done. State ex rel. Wear v. Springfield Gas & Elec. Co., 204 S.W. 942; Owen v. Ford, 49 Mo. 436; Carlin v. Wolff, 154 Mo. 539; Davis v. Hartwig, 195 Mo. 380; Brier v. Bank, 225 Mo. 673; Southwest Mo. Ry. Co. v. Mining Co., 138 Mo.App. 129. (d) The only fraud for which a final judgment can be set aside in equity is a fraud in procurement of the judgment. Cackley v. Myers, 199 S.W. 719; Payne v. O'Shea, 84 Mo. 129; Richardson v. Stowe, 102 Mo. 33; Irvine v. Leyh, 102 Mo. 200, 124 Mo. 361; Oxley-Stave Co. v. Butler County, 121 Mo. 614; Hamilton v. McLean, 139 Mo. 678, 169 Mo. 51; Bates v. Hamilton, 144 Mo. 1; Walther v. Null, 233 Mo. 104. (e) A judgment cannot be attacked in a collateral proceeding, where the court has jurisdiction of parties and subject-matter. State ex rel. Johnson v. M. & M. Bank, 213 S.W. 815; Craig v. Bright, 213 S.W. 845; Lilly v. Tobbein, 103 Mo. 477; Hope v. Blair, 105 Mo. 85, 16 S.W. 595; Truesdail v. McCormick, 126 Mo. 39, 28 S.W. 885. (f) The attempt to set aside alleged cloud was not a ground of action because no title of any kind was alleged or shown in Annie Gerardi, but explicitly denied in plaintiff's bill. Verdin v. St. Louis, 131 Mo. 105 to 116; Hannewinkle v. Georgetown, 82 U.S. (15 Wall. 1547); Tyson v. Brown, 64 Ala. 244; Maloney v. Finnegan, 38 Minn. 70; Mason v. Black, 87 Mo. 329; Overing v. Foote, 43 N.Y. 290; Gamble v. Loop, 14 Wis. 465; Meloy v. Dougherty, 16 Wis. 269. (g) There was no standing in equity to allege a cloud on the title, unless Annie Gerardi's title appeared to be valid on its face and superior to plaintiff's and it required extrinsic evidence to remove. Cox v. Clift, 2 N.Y. (2 Comstock) 118; Lawrence v. Zimpleman, 37 Ark. 643; Morgan v. Carter, 48 Minn. 501; Clark v. Life Ins. Co., 52 Mo. 272; Townsend v. New York, 77 N.Y. 542; Lehman v. Roberts, 86 N.Y. 239; Farnham v. Campbell, 34 N.Y. 480. If it appears from the petition that Annie Gerardi had no title to the land sold, there was no cloud and no jurisdiction to remove what did not exist. Janney v. Spedden, 38 Mo. 402; Odle v. Odle, 73 Mo. 294; Holland v. Johnson, 80 Mo. 38; Mason v. Black, 87 Mo. 345; Clark v. Ins. Co., 52 Mo. 276; Verdin v. City of St. Louis, 131 Mo. 153; Haywood v. Buffalo, 14 N.Y. 541; Russell v. Lumber Co., 112 Mo. 40; Verdin v. St. Louis, 131 Mo. 105 to 115. (h) There is no community of interest in the subject-matter of the suit between Gerardi and the Rookery Company, authorizing them to sue together. Carlson v. Harris, 43 Miss. 728. (8) The final decree was made on an order to show cause why an injunction should not be granted, and was made without any trial upon the merits, without any answer to the merits and without bringing in proper parties defendants, and without notice to defendants that final decision would be made, and without giving defendants opportunity to file answer making additional parties defendants on cross-bill, or opportunity to except to the action leaving out proper defendants. (9) The court erred in the exclusion of testimony as to the judgments against Joseph Gerardi, tending to show that whatever interest Joseph Gerardi had, if any, in the company was placed in the names of Annie Gerardi and their children to avoid and defeat his creditors; that the stock found in the name of Annie Gerardi was levied on as her stock, and that if Joseph Gerardi placed it there to defeat his creditors he could not dispute it was her stock. The conveyance, if made by Gerardi in fraud of his creditors, was valid between him and his wife, and her creditors could levy on the stock as hers. Also, the ten shares in the name of Joseph Gerardi, Jr., unless deeded to Gerardi and wife by the contract of April 3, 1909, remained his stock and Annie Gerardi's interest in it was subject to sale on execution. Henderson v. Henderson, 13 Mo. 151; Jacobs v. Smith, 89 Mo. 681; Stevenson v. Edwards, 98 Mo. 626; Thompson v. Cohen, 127 Mo. 215; Larrimore v. Tyler, 88 Mo. 668; Crook v. Tull, 111 Mo. 288; George v. Williamson, 26 Mo. 193; Wait on Fraud. Conv., sec. 395; McLaughlin v. McLaughlin, 16 Mo. 251; Steadman v. Hayes, 80 Mo. 320; Jackman v. Robinson, 64 Mo. 292; Roan v. Winn, 93 Mo. 511. (10) The court erred in attempting to try the title to personal property in an injunction proceeding and jointly with title to real estate. Baxter v. Baxter, 77 N.C. 119; Kistler v. Weaver, 135 N.C. 391; Bouldin v. Alexander, 7 Mon. 424; Young's Executor v. Young, 9 B. Mon. (Ky.) 66; Power v. Alger, 13 Abb. Pr. 284, 296; State ex rel. v. Wood, 155 Mo. 446; Ray v. Phosphate Co., 59 Fla. 600; Homer v. Kane, 7 Nev. 64; Wood v. Swift, 81 N.Y. 35. (11) The placing of two shares of the company in the name of Annie Gerardi, even if Joseph Gerardi, her husband, actually had owned that stock, made it Annie Gerardi's stock for the purpose of levy and subject to levy by Johnson, and the further fact that Joseph Gerardi and Joseph Gerardi, Jr., concurred that Joseph Gerardi and Annie Gerardi together owned the property in City Block 3881 (which is the property on which the Rookery Company's stock is based) fixes Annie Gerardi as the owner of at least one-half of that property, so far as the Gerardi men are concerned, whether or not either or any of them owned that stock. Wood v. Broadley, 76 Mo. 31; 21 Cyc. 1294, note 31, and 1298, notes 64 to 67; Grimes...