State ex rel. and to Use of Abeille Fire Ins. Co. v. Sevier

• Decision Date: 05 June 1934
• Docket Number: 33144
• Citation: 73 S.W.2d 361,335 Mo. 269
• Parties: State of Missouri at the Relation and to the Use of Abeille Fire Insurance Co. et al., Relators, v. Nike G. Sevier, Judge of the Circuit Court of Cole County
• Court: Missouri Supreme Court

73 S.W.2d 361

335 Mo. 269

State of Missouri at the Relation and to the Use of Abeille Fire Insurance Co. et al., Relators, v. Nike G. Sevier, Judge of the Circuit Court of Cole County

No. 33144

Supreme Court of Missouri

June 5, 1934

Reported at 335 Mo. 269 at 287.

Original Opinion of June 5, 1934, Reported at 335 Mo. 269.

Frank C. J. All concur, except Leedy, J., not sitting, and Ellison, J., absent.

OPINION

FRANK

On Motion for Rehearing.

Relators contend that respondent did not have jurisdiction to render judgment against them without according them an opportunity to be heard in defense; that the refusal to accord relators the right to present their defense was a denial of due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.

This contention is based on the following excerpts from the record:

"Thereupon relators stated that they desired to produce witnesses and had them in the court room, who would testify that, and show to the court that relators had no money, property or anything of value in their possession or control, and that the respective relators had never acquired or received anything pursuant to said judgment so the subject of supposed restitution: whereupon, the respondent stated that he would not hear said evidence but that he would appoint commissioners or masters to hear evidence and relators could then be heard. Relators objected and duly excepted to respondent's said ruling, and respondent stated that he had had in contemplation that the merits and objections to the jurisdiction should all be heard together, and that he would not hear relators further or permit the introduction of such evidence. Relators thereupon stated that witnesses were in court prepared to testify that relators had nothing whatever subject to restitution, and respondent said that he accepted counsel's statement that such witnesses were present but he would not hear them."

The record relied upon does not support the contention made. In the first place, the offer of proof was qualified and evasive. It was not an offer to prove that relators did not have in their possession or control any of the ten per cent excess premiums which they collected pending the final determination of the review suit. Whether or not relators had in their possession or control any money or property acquired pursuant to the erroneous judgment in the review suit, and whether or not they had money or property in their possession subject to restitution was a question of law to be determined by the court, and not by the opinion of any witness. Respondent would have been well within the law if he had rejected the offer for the reasons stated. However, the real answer to relator's contention is that they were not denied the opportunity of being heard in their defense. The record upon which relators rely to support the contention that they were denied a hearing clearly shows that respondent stated to them that he would not hear the proffered testimony, but that he would appoint commissioners or masters and that relators could then be heard. Other parts of the record to which relators do not call attention in their motion for rehearing, show the same thing.

In the finding of facts immediately preceding the judgment, the court found, among other things, the following:

"It further appears to the court upon the evidence and record in this cause that plaintiffs have refunded certain sums of money, the exact amount unknown, to certain policyholders, but that there still remains a vast amount of money, the exact amount unknown in the possession of plaintiffs, which does not belong to them, but which belongs to the policyholders of Missouri; that said plaintiffs have not paid back or refunded any interest to such policyholders, and that such plaintiffs still retain the entire interest on all of the moneys collected."

After the finding of facts, the court's judgment concludes in the following language:

"NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED That the defendant's motion for restitution upon behalf of the policyholders of Missouri, be sustained; that the plaintiffs make full and complete restitution; that judgment is hereby rendered against each one of the plaintiffs herein for the amount of the principal and interest due from them as set out in this decree; that the aggregate amount of the principal due is $ 13,087,609.48; that the aggregate amount of the interest due from the date of illegal collections at the rate of 6% per annum is $ 5,586,177.57, making a total of premiums wrongfully collected and interest of $ 18,673,787.05, to be paid by each of the plaintiffs depositing in this court such sum of money as adjudged to be due from them, together with such interest thereon; that a master or masters will be appointed by the court in order that such plaintiffs may show what refunds or other allowable credits, if any, they have made or are entitled to and for which they will receive credit and judgment will be accordingly rendered; that such master or masters will allow such plaintiffs to have a hearing on all of the issues regarding the amount of money due from them at this time and that such master or masters will conduct such hearings and make such investigation as directed by this court; that when each and every plaintiff has fully complied with this judgment and the other orders to be made by this court it will be fully and completely discharged from any and all liability to any one whatsoever regarding restitution; that this court will retain jurisdiction of this case to make any and all further orders which it deems necessary."

This judgment provides, in express terms, "that a master or masters will be appointed by the court in order that such plaintiffs may show what refunds or other allowable credits, if any, they have made or are entitled to and for which they will receive credit and judgment will be rendered accordingly; that such master or masters will allow such plaintiffs to have a hearing on all of the issues regarding the amount of money due from them at this time. . . ."

It appears from a reading of the judgment that the court not only did not refuse plaintiffs a hearing, but made express provisions that they should have a hearing, and should be permitted to show what refunds they had made, and would be given credit with such refunds and judgment would be rendered accordingly.

Relators make the further contention that the judgment shows on its face that an accounting was necessary to determine the liability of any of the respective relators, and the court was therefore without jurisdiction to enter the judgment which it did enter before an accounting was had.

This contention proceeds upon the theory that the judgment rendered was a final judgment. We do not so regard it. It is true the judgment recites that "it is ordered adjudged and decreed that defendant's motion for restitution upon behalf of the policyholders of Missouri be sustained; that the plaintiffs make full and complete restitution, and that judgment is hereby rendered against each one of the plaintiffs herein for the amount of the principal and interest due from them as set out in this decree." If the court had stopped with this adjudication, no doubt it would have been a final judgment, but it proceeded to take from the judgment every element of finality by adjudging that masters "be appointed by the court in order that such plaintiffs may show what refunds or other allowable credits, if any, they have made or are entitled to and for which they will receive credit and judgment will be rendered accordingly; that such master or masters will allow such plaintiffs to have a hearing on all of the issues regarding the amount of money due from them at this time and that such master or masters will conduct such hearings and make such investigations as directed by this court."

A similar question was before this court en banc in State ex rel. v. Klein, 140 Mo. 502, 41 S.W. 895. We there said:

"It is perfectly manifest that the plaintiff was given no final judgment in this case. The court finds and declares the right of plaintiff to have returned to it the difference between the amount which had been paid to defendant Clark on the award of the commissioners and the amount of his compensation as found by the jury. It is declared 'that plaintiff is entitled to a return of the sum of $ 39,610,' without interest, from said Clark, and the court doth order and direct the said defendant Clark to repay to plaintiff, or into court for the plaintiff, the said sum.

"It is unnecessary to say whether, if the court had stopped at this direction, it would have constituted a final judgment, for the court proceeded to shear the declaration of all the statutory incidents of a final judgment by declaring that the amount so found due plaintiff shall not bear interest, that execution shall not issue thereon, and that no lien therefor shall attach to the real estate of defendant. Taking the whole record entry together there is no final judgment and none was intended."

This court has quoted approvingly from recognized textwriters the rule for determining whether a judgment is interlocutory or final. In State ex rel. v. Klein, supra, we said:

"A judgment, though upon the merits, or determining some substantial right, which leaves necessary further judicial action before the rights of the parties are settled, is not final."

Again in State ex rel. v. Riley, 219 Mo. 667, 691, 118 S.W. 647, we said:

"The difficulty appears to arise in relation to those decrees which, while settling the general equities of the cause leave something for future action or determination. And the true rule seems to be that, if that which remains to...