Shepard v. Shepard

• Decision Date: 05 February 1945
• Docket Number: 39018
• Citation: 186 S.W.2d 472,353 Mo. 1057
• Parties: Georgia A. Shepard, Appellant, v. Carl A. Shepard et al
• Court: Missouri Supreme Court

186 S.W.2d 472

353 Mo. 1057

Georgia A. Shepard, Appellant, v. Carl A. Shepard et al

No. 39018

Supreme Court of Missouri

February 5, 1945

Rehearing Denied April 2, 1945.

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Reversed and remanded (with directions).

A H. Garner for appellant.

(1) The evidence of defendant, Minnie Sharp, was insufficient to establish a valid claim in the probate court, therefore, could not be a proper defense in this case. Broz v. Broz, 132 S.W.2d 1039; Hathaway v. McBridge, 198 S.W. 1143; Kersey v. O'Day, 73 S.W. 481; Poage v. Mallory, 235 S.W. 491. (2) This is an action in equity attacking a judgment, and not a collateral attack by the parties so situated. Engler v. Knoblaugh, 110 S.W. 16; Fitzpatrick v. Stevens, 89 S.W. 897; Reichelt's Estate, 179 S.W.2d 119; Hurst v. Hurst's Estate, 151 S.W.2d 534; Witte v. Smith, 152 S.W.2d 661. (3) The undisputed evidence in this case of defendant, Minnie Sharp, wherein she admits that her residences are such that the claim could not be a bona fide one. Thomas v. Fitzgerald Estate, 297 S.W. 425; Brunnert v. Boeckmann's Estate, 276 S.W. 89; Brunnert v. Broeckmann's Estate, 258 S.W. 768. (4) The respondents offered no evidence in the cause to sustain their position, so they are bound by the record proper and the testimony presented. (5) Sec. 1684, R.S. 1939, provides the manner in which equitable suits may be filed. Sec. 197, R.S. 1939, provides that the court shall take evidence of competent witnesses, or other evidence regarding the establishment of claims. Thompson v. Bratcher, 8 S.W.2d 1027. (6) The fact that the judgment was obtained through fraud or collusion is universally held to constitute a sufficient reason for obtaining or vacating such judgment. Wagoner v. Wagoner, 229 S.W. 1064; 34 C.J., p. 470, sec. 738; Abington v. Townsend, 197 S.W. 253; Doud v. Lockett, 215 S.W. 769. (7) There was no chance for the judgment creditor, appellant herein, to know of the proceedings by reason of the manner in which they were held, and she had a right to bring suit in equity to set aside the judgment obtained in probate court even though there be a concurrent legal remedy at law wherein the court said fraud going to the question of jurisdiction may be raised in proceedings of this kind and relief granted where the testimony shows that fraud had been practiced in procuring the judgment. Link v. Link, 48 Mo.App. 345; Fitzpatrick v. Stevens, 89 S.W. 897. (8) The only remedy available to appellant was a suit in equity to set aside said fraudulent judgment. 34 C.J., p. 473, sec. 741; Abington v. Townsend, 197 S.W. 253; Cockley v. Myers, 199 S.W. 719. (9) The facts are undisputed that the appellant, a creditor, whose claims were affected by the enforcement of the judgment such as obtained in probate court is such that the creditor has a right to bring an action to set aside the judgment. 34 C.J., p. 257, sec. 833; Abington v. Townsend, 197 S.W. 253. (10) Stranger to judgment may in some instances attack it collaterally when a party to it cannot, but he must have acquired an interest in the subject matter of the action prior to the rendition of the judgment. McIntyre v. St. L. & S.F. Ry. Co., 227 S.W. 1047; State ex rel. Courtney v. Calloway, 237 S.W. 173. (11) The present proceedings are proper to attack a judgment obtained in fraud. 34 C.J., p. 496, sec. 783; 238 S.W. 147; Beck v. Jackson, 140 S.W. 909. (12) The judgment should have been set aside and the title to the property quieted in appellant. Walther v. Null, 134 S.W. 993; Fitzpatrick v. Stevens, 89 S.W. 897; St. Louis Fire & Marine Ins. Co. v. Wagoner, 119 S.W.2d 1007; Hanne v. Watters, 47 S.W.2d 182; State ex rel. Harrington v. Pratt, 170 S.W. 418.

Norman & Foulke for respondents.

(1) A final judgment of the probate court, allowing a claim against an estate, is impervious to collateral attack and cannot be attacked except in a direct proceeding in equity to set aside such judgment for fraud in the procurement thereof. Walther v. Null, 134 S.W. 993; Jones v. Peterson, 172 S.W.2d 76; Blattel v. Stalling, 142 S.W.2d 9. (2) In a suit to quiet title, an attack on a judgment which is a lien against the land in question, is a collateral attack. Owen v. Long, 104 S.W.2d 365; Linville v. Ripley, 146 S.W.2d 581. (3) The evidence must be clear in character, strong in probative force, and so unequivocal in its meaning as to leave no doubt in regard thereto, before a court of equity will grant relief in an action to set aside a judgment by direct attack and then fraud in the very procurement thereof that was practiced on the court must be shown. Even if this was such an action appellant's evidence falls far short of this rule. Twedell v. Treasure, 44 S.W.2d 216; Peeters v. Schultz, 254 S.W. 182. (4) One not privy to a judgment has no right to attack same. Inter River Drain. Dist. v. Henson, 99 S.W.2d 865; Abington v. Townsend, 197 S.W. 256. (5) The petition fails to state a cause of action for fraud in the procurement of a judgment and appellant is not entitled to relief. The petition is only sufficient to state a cause of action to quiet title. Where fraud is relied on the specific acts constituting the fraud must be pleaded, and they must be sufficient to show fraud. Thompson & Co. v. Cowan Gideon Spec. Road Dist. of New Madrid County, 19 S.W.2d 1049, 323 Mo. 953; Dickey v. Volker, 11 S.W. 2d 278, 321 Mo. 235; Klaher v. Unity School of Christianity, 51 S.W.2d 30, 330 Mo. 854.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This is an equitable proceeding wherein plaintiff, Georgia A. Shepard, seeks to set aside a judgment of the probate court of Jasper county, Missouri, in favor of Minnie Sharp against the estate of Mary May Shepard, deceased. Plaintiff also asked in her suit that the title to lot 13, Barbee's Second Addition to the city of Joplin, Jasper county, Missouri, be quieted as against the defendants. From an adverse judgment plaintiff appealed.

Respondents filed a motion to dismiss the appeal on the theory that appellant has not complied with our rules. In support thereof an additional abstract was filed to show that the entire evidence has not been presented to this court. In equity cases, such as this is, that is required. However, in this case the defendants offered no evidence at the trial. The defense was, that under the law the plaintiff had no right to question the validity of the judgment in the probate court. Note what was said by the attorney for the defendants at the close of plaintiff's case:

"We are standing pat on the motion, we are not going to introduce any evidence. It is a law question." The evidence presented to us by appellant is sufficient for a complete understanding of the case. We examined the additional abstract of the record and the matters omitted from appellant's abstract were not material and in no way mitigated the defendants' theory of the law. We therefore rule the point against respondents and overrule the motion to dismiss.

The defendants named in the suit are Carl A. Shepard, former husband of plaintiff, and Minnie Sharp, owner of the judgment in the probate court. Carl A. Shepard was the executor of his mother's, Mary May Shepard's, estate. The facts as stated in plaintiff's petition are briefly as follows: In the year 1933 plaintiff obtained a divorce from the defendant Carl A. Shepard. The judgment provided that the defendant pay $ 5.00 per week for the support and maintenance of an infant child. In 1941 there was a balance of $ 1569 due on that judgment. In April, 1941, Mary May Shepard died and by her will the lot above described was left to Carl Shepard. At the death of the mother plaintiff's judgment became a lien against the lot. Thereafter Minnie Sharp, a sister of the deceased and an aunt of Carl, filed a claim against the estate in the sum of $ 3000 for alleged services rendered to the deceased. This claim was allowed. Thereafter plaintiff had an execution issued upon her judgment and pursuant thereto all of the right, title and interest of Carl A. Shepard in the lot was sold and plaintiff became the purchaser. A deed was executed and delivered to her. Plaintiff in her petition stated that the defendants and each of them claimed some interest in the lot in question because of the claim allowed in the probate court. Plaintiff alleged that the claim of Minnie Sharp was filed and allowed upon a fraudulent claim and was obtained upon false and fraudulent statements made in collusion with the defendant Carl A. Shepard, executor of the estate; that in fact at no time was the estate indebted to the said Minnie Sharp in any sum; that the claim was fraudulently obtained for the purpose of defeating the judgment of plaintiff against the defendant Carl A. Shepard. Plaintiff in the prayer of her petition asked that the allowance of the demand of Minnie Sharp in the probate court be set aside and for naught held; that the court adjudge, determine, settle and quiet the title and enter a decree that plaintiff be the sole owner of the lot and that the defendants and all persons claiming by or through them be barred from setting up any claim or title to said lot.

The defendant Minnie Sharp filed an answer alleging that the demand allowed in the probate court was a valid and binding judgment and constituted a prior lien against the lot in question and that the title of plaintiff was subject to that lien. Defendant in her prayer also asked the court to try and determine the rights of the parties and to adjudge that the judgment in the probate court be held to be a prior lien to that of plaintiff's lien and that the court order the lot sold to satisfy the defendant's judgment.

The trial court, after hearing evidence, dismissed plaintiff's petition....