Scientific American Club v. Horchitz

• Decision Date: 12 November 1912
• Citation: 168 Mo. App. 35,151 S.W. 475
• Parties: SCIENTIFIC AMERICAN CLUB v. HORCHITZ et al.
• Court: Missouri Court of Appeals

151 S.W. 475

168 Mo. A. 35

SCIENTIFIC AMERICAN CLUB v. HORCHITZ et al.

St. Louis Court of Appeals. Missouri.

November 12, 1912.

Rehearing Denied December 3, 1912.

1. COURTS (§ 488) — JURISDICTION — QUESTIONS IN CONTROVERSY.

Where the Supreme Court transfers a case appealed to it to the Court of Appeals, constitutional questions sought to be raised are eliminated.

2. JUDGMENT (§ 713) — CONCLUSIVENESS — QUESTIONS CONCLUDED.

A judgment of a court having jurisdiction of the parties and subject-matter is conclusive on the parties as to all matters in issue, or which could have been brought up in the trial of the cause; and a judgment for a foreign corporation is conclusive on its right to maintain the action.

3. JUSTICES OF THE PEACE (§ 191) — JUDGMENT ON APPEAL — CONCLUSIVENESS — PARTIES CONCLUDED.

A surety on an appeal bond, on appeal from a judgment of a justice is in privity with the judgment debtor; and the judgment is binding on both.

4. EXECUTION (§ 163) — FOREIGN CORPORATIONS — RIGHT TO EXECUTION ON JUDGMENT — ATTACK.

That a foreign corporation is not authorized to do business in the state is an affirmative defense to an action brought by it; and the mere filing of an ex parte affidavit, not brought to the attention of the court, in support of a motion to quash an execution on a judgment in favor of the foreign corporation, on the ground that it has not complied with the statute, does not establish the truth of the facts, and is not a sufficient attack on the right to execution, though it be assumed that the execution defendant may attack the execution for such reason.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by the Scientific American Club against Louis Horchitz and another. From a judgment for plaintiff, defendants appeal. Affirmed.

See, also, 128 Mo. App. 575, 106 S. W. 1117.

Frank K. Ryan, of St. Louis, for appellants. Bishop & Cobbs, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff commenced its action before a justice of the peace to recover a debt claimed to be due it by the defendant Horchitz. On trial before the justice there was a verdict and judgment for plaintiff. Seven days after the judgment was rendered, defendant appealed to the circuit court, giving an appeal bond with appellant Levin as surety. No notice of the appeal having been served on plaintiff, and after the lapse of several terms of the circuit court, plaintiff filed its motion to affirm the judgment of the justice for failure to give notice of the appeal. At the same term defendant Horchitz filed a motion to dismiss the appeal for the reason that plaintiff was a foreign corporation, organized under the laws of the state of New York and that at the times mentioned in the petition or statement in the case it was not authorized to do business in this state by its failure to comply with the provisions of what is now section 3039, R. S. 1909, and under what is now section 3040, it could not maintain any action or suit. This motion was stricken from the files by the circuit court and the motion to affirm the judgment of the justice sustained, the judgment being rendered in the circuit court in favor of respondent, plaintiff below, and against Horchitz, the defendant in the case, and Levin his surety on his appeal bond. Whereupon defendant Horchitz appealed to this court, where the judgment of the circuit court was affirmed. See Scientific American Club v. Horchitz, 128 Mo. App. 575, 106 S. W. 1117. Execution thereupon issued out of the office of the clerk of the circuit court against Horchitz and Levin, who thereupon filed their motion to quash the execution, alleging the same grounds as set out in the former motion, that is failure of plaintiff to comply with the provisions of section 3039, supra, and upon the further ground that the summary judgment against defendant Levin, surety on the appeal bond, and issue of execution thereon deprived him of his property without due process of law, in violation of the provisions of the...