Shelbina Hotel Ass'n v. Parker

• Decision Date: 31 October 1874
• Parties: SHELBINA HOTEL ASSOCIATION, Respondent, v. GEORGE J. PARKER, Appellant.
• Court: Missouri Supreme Court

58 Mo. 327

SHELBINA HOTEL ASSOCIATION, Respondent,

v.GEORGE J. PARKER, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Shelby Circuit Court.

Anderson & Boulware, for Appellant.

I. The judgment of the court on the award is a complete bar to plaintiff's action herein: 1st--Said judgment had the same force and effect that a judgment in an action of debt upon the award would have had. (Wagn. Stat., p. 145, § 17; G. Stat., ch. 198, § 17.) Any matter which at law or in equity would constitute a defense to an action on the award, might have been set up in the proceeding under the statute by motion. (Field vs. Oliver, 43 Mo., 201.) Nor does it admit of doubt that, under our practice, any state of facts which in equity would be ground for setting aside and vacating an award in a direct proceeding for that purpose, may be set up in defense to an action on the award. (Valle vs. N. Mo. R. R. Co., 37 Mo., 450; Hyeroniums vs. Allison, 52 Mo., 102; Gen. Stat. Mo., ch. 165, § 13.)

II. The award was merged in and extinguished by the judgment. (Freem. Judgm., § 215, et seq., and authorities cited.)

III. The award and the rights of the parties growing out of it have passed “ in rem adjudicatam.” The judgment, until reversed by a superior court, is conclusive between the parties as to their rights. It concludes the defendant therein as to every matter which was open to him as a defense. Interest reipublicæ ut sit finis litium.” (Aurora City vs. West, 7 Wall., 102; Homer vs. Fish, 1 Pick., 435; Freem. Judg't, § 215, et seq.; §§ 286-289, and authorities cited; Donahue vs. Prentiss, 22 Wis., 311; Beloit vs. Morgan, 7 Wall., 621; Sheets vs. Selden, 7 Wall., 423; Binck vs. Wood, 43 Barb., [N. Y.] 315; Bobi's heirs vs. Stickney, 36 Ala., 482.)

IV. The fact averred as the gravamen of the action was known to plaintiff before the proceeding was had on the award, and a failure to set it up would be such negligence as would cut off any right he might otherwise have to maintain an action to set aside the judgment. This would be true if the fact averred was fraud instead of mistake, and if it were true that fraud or mistake in the original transaction was ground for setting aside the judgment in a direct proceeding in equity for that purpose.

V. It is well settled, that money paid under a judgment can not be recovered back in a new suit, grounded on any matter that would have been a defense to the former action. (Marriot vs. Hampton, reported in Smith's Lead. Cas., vol. 2, top p. 333, side p. 237; and the notes thereto both English and American, and the authorities therein cited; Homer vs. Fish, above cited; Freem. Judg't, and the authorities above referred to.)

Dryden & Dryden with Chas. M. King, for Respondent.

I. The petition though not formally a bill, is nevertheless substantially a bill in equity to set aside the award for mistake. Upon the facts of the case the plaintiff was relievable in equity. (Valle vs. N. Mo. R. R. Co., 37 Mo., 451; 2 Greenl. Ev., § 78; Sto. Cont., §§ 985, 986; 2 Parson's Cont., pp. 701-4; 2 Sto. Eq. Jur., § 1456.)

II. It was competent to establish the mistake by the testimony of the arbitrators. (Valle vs. N. Mo. R. R. Co., supra; 2 Greenl. Ev., § 78.)

III. The judgment in this case is so palpably for the right party that the court will not reverse for merely technical considerations.SHERWOOD, Judge, delivered the opinion of the court.

The judgment in this case must be reversed on two grounds:

First, the petition which seeks to recover $172.80, from the defendant, on account of a mistake made to that extent by the arbitrators, who were selected by the parties to settle a question of difference between them respecting the building of a hotel for the plaintiff by the defendant, and the amount of money yet remaining unpaid to him on the contract, shows upon its face, that the plaintiff was made aware of the mistake by the arbitrators, soon after they had signed and before they had delivered their award, and that, notwithstanding this information, the plaintiff permitted the award, without objection, to be confirmed under the provisions of the statute by the judgment of the Circuit Court, and subsequently satisfied the execution issued on such judgment. At the trial, the introduction of any evidence was objected to on the ground that the petition did not state facts sufficient to constitute a cause of action, and in thus objecting, the defendant was undoubtedly right. After the numerous adjudications on this point, it ought to be regarded as settled, that where a party to an action, being fully apprised of his rights, suffers judgment to go against him, when he might, by the exercise of reasonable diligence in making his defense, prevent a recovery of the amount claimed, either in whole or in part, he should not be allowed in a subsequent proceeding to re-agitate questions which either were, or else would have been, adjudicated at the former trial, but for his inexcusable neglect.

And in this regard, courts of law, as well as courts of equity, pursue the same wise policy, and concur in the application of the same enlightened maxims. (Freem. Judg'ts, § 249 and cases cited; 2 Sto. Eq. Jur., §§ 895, 895 a, 896, and cases cited; Greatheart vs. Brownley, 7 T. R., 455; Aurora, City vs. West, 7 Wall., 82, and cases cited; Duncan vs. Gibson, 45 Mo., 352 and cases cited; Valle vs. N. Mo. R. R., 37 Mo., 445; Bateman vs. Willoe, 1 Sch. & Less., 204; Smith vs. Lowry, 1 Johns. Ch., 322; Smith vs. Lewis, 3 Johns., 157; Peck vs. Woodbridge, 3 Day, 36; Mariott vs. Hampton, 7 T. R. 269; Homes vs. Avery, 12 Mass., 137; Id., 268; State vs. Coste, 36 Mo., 437; Doty vs. Brown, 4 Comst., 71; Gardner...