Sanders v. Brooks
| Citation | 183 S.W.2d 353,238 Mo.App. 485 |
| Parties | Harry Sanders, Appellant, v. Clelia Brooks and A. F. Oberhelman, Respondent |
| Decision Date | 02 October 1944 |
| Court | Court of Appeals of Kansas |
Appeal from Lafayette County Circuit Court; Hon. Robert D. Johnson Judge.
Affirmed.
Frank F. Catron for appellant.
(1) The setting aside of a judgment for reasons dehors the record falls within the concurrent jurisdiction of law and equity, and there is an inherent right to proceed in equity. Gazolla v. McCann, 65 Mo.App. 44; Gill v Ely-Morris Safe Co., 156 S.W. 811; Barry v Robinson, 9 Mo. 276; Jones v. Pharis, 59 Mo.App. 254; Baldwin v. Davidson, 40 S.W. 765; Capitain v. Trust Co., 144 S.W. 466. (2) Lack of due process of law renders a judgment void. Hull v. Baird, 80 Mo.App. 200; Gray v. Bowles, 74 Mo. 423; 12 C. J., Const. Law, p. 1190; Mafferty v. Lawson, 283 S.W. 610; Hider v. Short, 257 S.W. 112; St. Louis v. R. R. Co., 211 S.W. 671; Wilcox v. Phillips, 169 S.W. 94; Clark v. Mitchell, 64 Mo. 564; State ex rel. v. North, 264 S.W. 678; Hulett v. M., K. & T. R. R. Co., 46 S.W. 951; State ex rel. Nat. Lead Co. v. Smith, 134 S.W.2d 1061; Ex parte Irvin, 6 S.W.2d 597; State v. Mossman, 87 S.W. 75; Jack v. Jack, 243 S.W. 314; Windsor v. McVeigh, 93 U.S. 274; Williams v. Monroe, 28 S.W. 853. (3) A former adjudication renders the subsequent judgment void. Ormsby v. A. B. C. Warehouse Co., 288 S.W. 969; Sprinkle v. Fleming Estate, 239 S.W. 899; Dancigear v. American Express Co., 179 S.W. 806; Producers Packing Co. v. Sisher, 283 S.W. 747; Dittmeier v. Laughlin. 253 S.W. 777; Larue v. Kempff, 171 S.W. 588; Brown v. Curtiss, 137 S.W. 24; Tool Co. v. Champ Spring Co., 123 S.W. 513; Couch v. Harp, 100 S.W. 9; Wilson v. Knox County, 34 S.W. 45; Pugh v. Williamson, 61 Mo.App. 165, 169; City of Springfield v. Plummer, 87 Mo.App. 515; Howey v. Howey, 240 S.W. 450; Bob v. Taylor, 193 S.W. 800; Mallory v. Patterson, 161 S.W. 306. (4) The judgment is voidable through reason of being premature, irregular, unjust and oppressive. Ryan v. Hughes, 193 S.W. 296, 299; Hess v. Fox, 124 S.W. 83; City of Dearborn v. Gann, 105 S.W. 14; Neenan v. City of St. Joseph, 28 S.W. 463; Craig v. Smith, 65 Mo. 536; Patterson v. Yancey, 71 S.W. 845, 848. (5) Equity will enjoin the prosecution of a suit where there is a prior action pending. Muth v. Trust Co., 77 Mo.App. 493; Walter Co. v. Gilleland, 98 Mo.App. 584; Thompson v. Holden, 117 Mo. 118. (6) Equity will act to prevent a multiplicity of suits and vexatious suits. Adams v. Met. Life Ins. Co., 139 S.W.2d 1098; Calvert v. Bates, 44 Mo.App. 626; Broecker v. Mo. Pac. R. R. Co., 10 Mo.App. 448; Sylvester Coal Co. v. City of St. Louis, 32 S.W. 649; Sills v. Goodyear, 80 Mo.App. 128; Ex rel. Jump v. Louisiana, 92 S.W. 153; 21 C. J., Equity, p. 76. (7) The defense of equitable estoppel not available in a justice court action nor on appeal therefrom, is available in separate equitable action in circuit court. Overton et al. v. Stevens et al., 8 Mo. 622; McClure v. Colclough, 5 Ala. 65; Hicks v. Martin, 25 Mo.App. 359; McCann v. Sawyer, 59 Mo.App. 480. (8) Where jurisdiction to render judgment is involved the absolute verity of the record does not apply. Mullens v. Reiger, 70 S.E. 4. (9) Falsification of the record entry constitutes fraud. Hyatt v. Woolf, 22 Mo.App. 191; Motor Acceptance Corp. v. Phillips, 5 S.W.2d 681; Howard v. Scott, 125 S.W. 1158. (10) The allegations of fraud are sufficient to state a cause of action. Tyree v. Navrau, 258 S.W. 717, 721; State v. Hobbs, 279 S.W. 681; Wonderly v. Lafayette County, 51 S.W. 745; Stewart v. Severance, 43 Mo. 322; Fidelity Loan Co. v. Baker, 54 Mo.App. 79; Massey v. Young, 73 Mo. 269; Sanders v. Coelcker, 51 Mo.App. 328, 331.
Blackwell & Sherman for respondents.
(1) The amended petition fails to state facts sufficient to constitute a cause of action. Peters v. Schultz, 300 Mo. 324, 254 S.W. 182; Philips v. Air Reduction Sales Co., 85 S.W.2d 551, 559; Elliott v. McCormick, 323 Mo. 263, 274, 19 S.W.2d 654; McDonald v. McDaniel, 242 Mo. 172, 175, 145 S.W. 452; Lieber v. Lieber, 239 Mo. 1, 31, 143 S.W. 458, 467; Cantwell v. Johnson, 236 Mo. 575, 600, 139 S.W. 365; Hockenberry v. Cooper Co. State Bank, 338 Mo. 31, 42, 88 S.W.2d 1031; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, 15 R. C. L. 760-771, secs. 214-223; Murphy v. DeFrance, 101 Mo. 151, 157. (2) On appeal to the circuit court the case would be tried de novo. Sec. 2738, R. S. Mo. 1939; Krause v. Spurgeon, 221 Mo.App. 26, 31, 297 S.W. 434. (3) Amendments are permitted in the circuit court after an appeal from a justice court, and the law permitting amendments is liberally construed by the courts. Sec. 2746, R. S. Mo. 1939; Rippee v. K. C. F. S. & M. Ry. Co., 154 Mo. 358, 55 S.W. 438; Dowdy v. Wamble, 110 Mo. 280, 19 S.W. 489; Cindrick v. Scott, 226 Mo.App. 153, 42 S.W.2d 957. (4) Plaintiff's remedy was by appeal. Cantwell v. Johnson, 236 Mo. 575, 600, 139 S.W. 365; McDonald v. McDaniel, 242 Mo. 172, 175, 145 S.W. 452; Murphy v. DeFrance, 101 Mo. 151, 158; Rogers v. Dent, 292 Mo. 576, 585.
This is an action in equity to annul, and to enjoin the enforcement of, a judgment for rent rendered by a Justice of the Peace. A general demurrer was filed by respondents to appellant's petition in equity on the ground that the same did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court. Plaintiff, appellant herein, refused to plead further, whereupon judgment was rendered, dismissing the cause. Plaintiff has appealed.
The petition involves two other lawsuits, in which the position of the parties as plaintiffs and defendants was different from their position in the instant case. For the purpose of clarity, the parties will be referred to hereinafter, when necessary, by their respective names and act by their party designations.
The petition in the equity case, which is the one before us for consideration, is of great length, and, with the omission of many of its statements of conclusions, alleges, in substance as follows:
That A. F. Oberhelman at all times mentioned was and is a Justice of the Peace within and for Clay Township, Lafayette County, Missouri; Clelia Brooks is the party in whose favor a judgment was rendered against Harry Sanders in the court of said defendant Justice of the Peace; that said suit was presented on a statement of account for rent to Clelia Brooks in the amount of $ 60; that said statement was amended to set out further description of the premises involved, but contained no allegations of ownership, right, title, or possession of said premises; that on April 25, 1943, said justice case came on for hearing before defendant Justice of the Peace, at which Sanders presented a plea in abatement and in bar of said action in that the total of the claim and demand was already pending on appeal in a previous action; that the action before defendant Oberhelman constituted a multiplicity of suits before the same parties in the same cause of action, thereby being vexatious; that said pleading in bar was made also on the ground that said cause of action had previously been presented as a counterclaim in a previous action in a justice court between the same parties, had been considered by the court in said previous action, and was a component part of a judgment rendered therein, which previous cause was then pending on appeal in the circuit court of said county; that proof in support of said plea in abatement and in bar was offered by Sanders, uncontradicted by Clelia Brooks, nor was the jurisdiction of the prior court challenged; that nevertheless defendant Oberhelman refused to abate said action, or to declare the same barred by the former adjudication; that Sanders did thereupon file a motion to continue the hearing, stating to said justice that he had relied on the assumption that the cause would be abated, by reason whereof he had not come prepared to offer a complete defense; that said Oberhelman immediately overruled said motion and ordered the trial to proceed; that Sanders then filed motion before said justice to the effect that Clelia Brooks was not the proper party plaintiff, and that she had no cause of action against Sanders, and setting forth that if there were any cause of action that it would be a cause of action of Sydney Brooks, or the cause of action of Clelia Brooks and Sydney Brooks jointly, wherefore Sanders asked said justice that the service be quashed and the case dismissed, or that the court should add Sydney Brooks as an additional party coplaintiff, further setting out as reason therefor that the only agreement ever made for the use and occupancy of the premises involved was entered into with Sydney Brooks, who had represented himself to Sanders as the owner of said land, and that Sydney Brooks was the only one to whom Sanders ever made attornment, and the only one who ever appeared to exercise any authority or control over the premises; that said plea before the justice set out further that a contract with Sanders had been entered into with Sydney Brooks concerning said premises, and included the rent and use of other lands to which the aforesaid Sydney Brooks claimed ownership, as to which part of said contract Sydney Brooks had failed of performances by not putting Sanders in possession of said other lands; that said plea before said justice further stated that Sanders had a counterclaim against Sydney Brooks growing out of the same transaction, and that unless the latter be made party coplaintiff, the matters involved in the same transaction could not all be settled in one action.
That said plea in bar before the justice also averred that Clelia Brooks was not the owner of the premises for the rent of which the suit was...
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