Schroeder v. Edwards

• Decision Date: 16 July 1918
• Docket Number: No. 20500.,20500.
• Citation: 205 S.W. 47
• Parties: SCHROEDER et al. v. EDWARDS et al.
• Court: Missouri Supreme Court

205 S.W. 47

SCHROEDER et al. v. EDWARDS et al.

No. 20500.

Supreme Court of Missouri, Division No. 2.

July 16, 1918.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Suit by Hermann Schroeder and others against George L. Edwards and others. From judgment for plaintiffs, defendants appeal. Affirmed.

This is a second appeal in this case. The first is reported in 267 Mo. 459, 184 S. W. 108, and we refer to that report for a complete statement of the facts up to that time. It is sufficient for present purposes to say that the suit is by judgment creditors of an Illinois corporation against former stockholders thereof to subject unpaid subscriptions to the capital stock to the payment of such debts.

The third amended petition, on which the judgment involved in the former appeal was recovered, alleged that the creditors therein named had recovered their respective judgments against the corporation in the circuit court of Randolph county, Ill. The evidence for the plaintiffs on that appeal showed judgments for the parties and for the amounts and on the dates named in that petition, but showed that such judgments were rendered by the clerk of that court in vacation on confession. There was then no proof of the statutes of that state authorizing the rendition of judgments by the clerk in vacation on confession. But those judgments were in evidence showing the appearance of the plaintiffs and defendants before the clerk in vacation, and that the defendant appeared by attorney who was duly authorized by warrant of attorney duly executed by defendant, all of which is shown on page 475 et seq. of 267 Mo., 184 S. W. 108, on the former appeal.

The order remanding the cause on the former appeal is as follows:

"It is therefore ordered that the foregoing opinion be modified so that, instead of remanding the cause generally for a new trial, the cause be remanded with directions that the new trial shall be confined to the single issue as to whether or not there was statutory authority in Illinois authorizing the clerk of said circuit court to enter or render the respective judgments upon which said respondents base their respective claims. Either party may, if they so desire, so amend the pleadings as to more clearly draw the issue upon this question. After a determination of this single issue, the circuit court will thereupon enter its judgment or decree, in accordance with the facts heretofore found and the facts then found upon this issue."

Prior to the last trial, the plaintiffs filed a fourth amended petition, which was the same as the third except in tie following particulars: (1) It alleged the assignment of two of the judgments against said corporation, and the substitution herein of such assignees as parties plaintiff. (2) The death of three other holders of such judgments and the substitution of their administrators as parties plaintiff herein. (3) It alleged that the judgments were rendered by the clerk in vacation on confession. (4) It alleged that, under section 12 of article 6 of the Constitution of Illinois, the circuit courts are courts of record and of general jurisdiction. It also alleged the provisions of the statutes of that state making the clerks of such courts the keepers of their records and seals. It contained this allegation:

"Plaintiffs further state: That chapter 110 of the Laws of Illinois, in force at the time the judgments in the above-entitled cause were rendered, was an act in relation to practice and procedure in courts of record, and that paragraph 66 of said chapter provided: `Any person for a debt bona fide due may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens in like manner and extent as judgments entered in term.' That under the decisions of the Supreme Court of Illinois in construing said section 66, and particularly as construed in the case of Conkling v. Ridgely, 112 Ill. 36, 1 N. E. 261, 54 Am. Rep. 204, and in accordance with the practice observed in the state of Illinois, the clerk of the circuit court alone has authority to enter judgments by confession in vacation. That the respective judgments obtained by the original plaintiffs in this cause, and which are now either owned by the original plaintiffs or their successors duly substituted herein, were all judgments by confession duly entered by the clerk of the circuit court of Randolph county, Ill., in ye cation, pursuant to the statutory power above set forth, as construed by the Supreme Court of Illinois, and the practice observed in following the above statute."

Defendants moved to strike out the fourth amended petition, on the ground that the judgments by confession before the clerk in vacation set out in that petition were different from the judgments shown in the prior petitions, and that, for that reason, the last petition stated a different cause of action from the one previously alleged. The motion was overruled.

Defendants then filed an answer which contained:

(1) A general denial.

(2) It alleged that the cause of action stated in the last petition was different from that stated in the prior petition in the respects above mentioned, and pleaded the ten-year statute of limitations of this state as to judgments.

(3) It...