Smith v. Boudreau, No. 23299.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBecker
Citation82 S.W.2d 129
PartiesTHE STATE OF MISSOURI AT THE RELATION AND TO THE USE OF WILLIAM T. SMITH, RESPONDENT, v. JOSEPH G. BOUDREAU, ROBERT A. MAY AND WARREN H. MAY, APPELLANTS.
Decision Date07 May 1935
Docket NumberNo. 23299.
82 S.W.2d 129
THE STATE OF MISSOURI AT THE RELATION AND TO THE USE OF WILLIAM T. SMITH, RESPONDENT,
v.
JOSEPH G. BOUDREAU, ROBERT A. MAY AND WARREN H. MAY, APPELLANTS.
No. 23299.
St. Louis Court of Appeals. Missouri.
Opinion filed May 7, 1935.
Respondent's Motion for Rehearing Overruled May 21, 1935.
Writ of Certiorari Denied by Supreme Court July 9, 1935.

Appeal from Circuit Court of Pike County. — Hon. Edgar B. Woolfolk, Judge.

REVERSED AND REMANDED.

F.D. Wilkins for respondent.

(1) All issues which could have been disposed of on merits in former suit between same parties and privies are deemed settled and former judgment is bar, not only as to matters raised, but to all defenses which could have been raised. United States v. Lufcy, 49 S.W. (2d) 8, 14; Summet v. Realty Co., 208 Mo. 501, 511; State ex rel. Gilbert v. Eldridge, 65 Mo. 584, 585; Citizens Sec. Bank v. Gatewood, 36 S.W. (2d) 426; Shelly v. Ozark Pipe Line, 2 S.W. (2d) 115, 121. (2) Judgment is res adjudicata as to every issue which was within purview of pleadings and applies to every point properly belonging to subject-matter of issue which might have been brought forward. Citizens Bank v. Gatewood, 36 S.W. (2d) 426; Kansas City v. Southern Surety Co., 51 S.W. (2d) 221; Spring v. Giefing, 315 Mo. 525, 532; Powell v. City of Joplin, 73 S.W. (2d) 408, 412. (3) An interplea being in the nature of replevin ingrafted on attachment proceeding, a claim in the nature of a counterclaim may be allowed and a counterclaim on a money demand may be set up for affirmative relief as well as to defeat the plaintiff's claim. McCormick Harvesting Co. v. Hall, 104 Mo. App. 544, 552; Boehme v. Roth, 280 S.W. 730; Howard v. Gass, 131 Mo. App. 499; Collins v. John Pfingston Leather Co., 196 Mo. App. 611, 621, 622. (4) Plaintiff could have interposed any defense in former suit which he had that would have defeated interpleader's title or right. He could have shown interpleader's claim to be fraudulent. First Natl. Bank. v. K.C. Lime Co., 43 Mo. App. 561; Bank v. Boyer, 161 Mo. App. 143; Ottumwa Natl. Bank v. Totten, 114 Mo. App. 97. (5) Judgment is conclusive not only as to questions which were raised but as to every question which could have been raised. Powell v. City of Joplin, 73 S.W. (2d) 408; Bank v. Casualty Co., 270 S.W. 691, 696; Pierce v. Bank, 268 Fed. 495. (6) The matter pleaded in defendants' counterclaim and part of answer, stricken out, did not constitute and was not available as a defense to and could not be set off against an action on the attachment bond. State ex rel. v. Eldridge, 65 Mo. 584; Crary v. Standard Inv. Co., 285 S.W. 459. (7) Res adjudicata applies to parties and their privies; and parties and privies include all of the appellants herein. State ex rel. Terry v. Holtkamp, 51 S.W. (2d) 13; Morehead v. Cummins et al., 230 S.W. 656; Runnels v. Lasswell et al., 272 S.W. 1032; Dolfus v. Cohen, 261 S.W. 754; Davidson v. Davidson R.E. Co., 249 Mo. 474. (8) Unliquidated damages are not subject of set-off. State ex rel. v. Eldridge, 65 Mo. 584. (9) Under a general denial to an interplea plaintiff may show the interpleader's claim to be fraudulent and, therefore, no title. McCormick Harvesting Co. v. Hall. 104 Mo. App. 544; Bank v. Boyer, 161 Mo. App. 143, 155. (10) Appellant cannot collaterally attack the judgment by saying he had some defense he did not present. Crary v. Standard Inv. Co., 285 S.W. 459, 461. (11) The alleged agreement was not in the case and there was no evidence of such an agreement. Bobb v. Kier et al., 246 S.W. 926; Melvin v. Hoffman, 235 S.W. 107, 299 Mo. 464. (12) The answer and counterclaim constituted no legal and proper defense and a motion to strike out was proper. Shohoney v. Railroad, 132 S.W. 1050, 231 Mo. 131; Phillips v. Evans, 38 Mo. 305. (13) The court's action in sustaining plaintiff's motion to strike, if error at all, was waived. Fuggle v. Hobbs, 42 Mo. 537; Waldron v. Merseal, 162 Mo. App. 380, 383; Reynolds v. Davis, 260 S.W. 994, 996; Titus v. Development Co., 264 Mo. 239, 240. (14) Section 1285, Revised Statutes 1929, does not mean that the plaintiff in the original suit may avail himself of any set-off or counterclaim he may have against the party to whose use the suit is brought. Boudreau was a party to the attachment suit and plaintiff therein. 46 C.J., p. 851; Thompson v. Johnson, 40 N.J.L. 220, 222. (15) The proper remedy of a successful interpleader in an attachment suit is a suit on the bond. State ex rel. Stevenson v. American Surety Co., 74 S.W. (2d) 1094. (16) The court's remarks in excluding defendants' counterclaim was not error. Freidman v. Railways Co., 293 Mo. 235, 248; Moore v. Railroad, 283 S.W. 732, 735; Cromeens v. Sovereign Camp, 247 S.W. 1033; Stobier v. Transit Co., 203 Mo. 702. (17) The court did not err in refusing defendants a continuance and in allowing plaintiff to amend reply. Baker v. Railway, 39 S.W. (2d) 535, 327 Mo. 986, 1006; Miller v. Brick Co., 246 S.W. 960. (18) The evidence admitted on measure of damages was legal and proper. Deane v. Hanser, 83 Mo. App. 609, 614. (19) The court committed no prejudicial error in giving plaintiff's instructions and in refusing defendants' instructions. Authorities under Subdivisions 1 and II and in Argument, Points VIII and IX. (20) The verdict of the jury is for the right party and should be affirmed. Boudreau v. Brown et al., 39 S.W. (2d) 455, and cases cited hereinabove.

Staunton E. Boudreau and May & May for appellants.

(1) The trial court erred in sustaining plaintiff's motion to strike defendants' answer and counterclaim on the ground that the matters therein pleaded were res adjudicata. "The doctrine of res adjudicata cannot be invoked by demurrer or motion to strike. Res adjudicata is an affirmative defense and must be pleaded and supported by proof that the matters adjudicated in the former suit were the same as are now presented for determination in the suit at bar." Beattie Mfg. Co. v. Gerardi, 166 Mo. l.c. 155; Kilpatrick v. Robert, 278 Mo. l.c. 263. (2) "In suit on attachment bond defendants had a right to avail themselves of their counterclaim." Sec. 1285, R.S. Mo. 1929; State ex rel Mathieson, 207 Mo. App. 676; McElvain v. Dorroh, 204 S.W. 824. (3) "Where the general owner of chattels is entitled to their possession, and it is so adjudged in an action of replevin brought against him by one having a special lien thereon, the latter, when sued on his replevin bond, may set up in mitigation of damages his special lien." Dolfuss v. Cohen, 261 S.W. 757. (4) "The interplea in the attachment suit was a separate proceeding from the attachment, and the right of property was the only issue involved therein, it being in the nature of replevin and grafed on the attachment proceedings." Green v. Powell, 46 S.W. (2d) 915, l.c. 919. "A judgment of the plaintiff in an action of replevin will not debar the defendant from asserting against the plaintiff a claim for compensation for the care of the property replevined in the replevin suit." Wright v. Broome, 67 Mo. App. 32. (6) "The sole issue in the interplea suit was the title to the property involved." Segar v. Foster (Ia.), 129 N.W. 681; 8 A.L.R. 690 and note. (7) "The matter set up in the counterclaim had not been in fact submitted and passed on at the trial of the interplea suit and was, therefore, not res adjudicata." Wright v. Salisbury, 46 Mo. 26. (8) "Res adjudicata does not extend to matters which the defendant might have pleaded by way of set-off, or counterclaim, but in fact did not set up. These he may produce, but is not bound to do so." Mason v. Summers, 24 Mo. App. 174. (9) "Only the issues common to both causes and put in issue by the pleadings are res adjudicata." Paving Co. v. Field, 132 Mo. App. 628. (10) "It is not the doctrine in this State that every possible issue that might have been tried under the pleadings in a given case is conclusively presumed to have been tried and the matter become res adjudicata. Only the matters that were actually considered by the court are settled by the judgment." Tootle v. Buckingham, 190 Mo. 183, l.c. 196; Boyer v. K.C., 205 S.W. 873. (11) "Deceit set up in defendant's answer and counterclaim was proper." Hall v. Clark, 21 Mo. 415. (12) "The judgment only concludes the parties as to point actually determined, that is, to issues tendered or joined by the pleadings, and decided, and not those which might properly have been, but were not." Barkhoffer v. Barkhoffer, 93 Mo. App. 381; Dickey v. Heim, 48 Mo. App. 120; Hingston v. Montgomery, 121 Mo. App. 465. (13) "There is no res adjudicata unless the second suit is not only between the same parties but between them in the same capacity." Kirk v. Ins. Co., 38 S.W. (2d) 519; 34 C.J. 756-757-894-998-999; State ex rel. v. Branch, 34 Mo. 592; Meyer v. Nishwitz, 198 Mo. App. 102; Windham v. Kline, 77 Mo. App. 46; Overshiner v. Britton, 169 Mo. 350; State ex rel. v. St. Louis, 145 Mo. 567. (14) "Res adjudicata is affirmative defense, and to raise the question it must be properly pleaded and the court erred in ruling the matter as res adjudicata. The same, not appearing on the face of the pleading, required proof." Kilpatrick v. Robert, 278 Mo. 257; Beattie Ins. Co. v. Gerardi, 166 Mo. 142; Bray v. Land Construction Co., 203 Mo. App. 642; O'Donnell v. Matthews, 284 S.W. l.c. 207; Nelson v. Jones, 245 Mo. 579; Munday v. Knox, 19 S.W. (2d) l.c. 497; Debert v. D'Arsy, 248 Mo. 619; Bell v. Hoaglin, 15 Mo. 254; Lemon v. Drainage Dist., 275 S.W. 44; Kelly v. Hurt, 61 Mo. 463; Scanlon v. K.C., 28 S.W. (2d) l.c. 89; Paul v. Huling, 125 Mo. App. 480. (15) Plaintiff's reply to defendants' answer and counterclaim was in effect a general denial. It stated no facts showing that the matters set up in the counterclaim were res adjudicata. It merely stated a conclusion in that respect. State ex rel. v. City of Clarence, 73 S.W. (2d) l.c. 807. (16) Counterclaim — "The items of defendant's...

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