State ex rel. Clark v. Shain

• Decision Date: 28 September 1938
• Docket Number: 34478
• Citation: 119 S.W.2d 971,343 Mo. 66
• Parties: State of Missouri at the relation of James L. Clark, Trustee of the Estate of Mary M. Parker and Mary Katherins Fortney, under the last Will and Testament of Albert G. Parker, Relator, v. Hopkins B. Shain, Robert M. Reynolds and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

119 S.W.2d 971

343 Mo. 66

State of Missouri at the relation of James L. Clark, Trustee of the Estate of Mary M. Parker and Mary Katherins Fortney, under the last Will and Testament of Albert G. Parker, Relator, v. Hopkins B. Shain, Robert M. Reynolds and Ewing C. Bland, Judges of the Kansas City Court of Appeals

No. 34478

Supreme Court of Missouri

September 28, 1938

Rehearing Granted, Reported at 343 Mo. 66 at 75.

Opinion filed at May Term, 1938, August 8, 1938, motion for rehearing filed; motion overruled at September Term, September 28 1938.

Writ quashed.

E M. Jayne for relator.

(1) The opinion of respondents that a liability under the bond attached only as to money that actually came into the hands of the trustee and that the bond in suit did not cover the fraudulent misrepresentations and other derelictions of the trustee, is in conflict with and violates the provisions of Section 15, Article II, of the Constitution of Missouri, in that it impairs the obligations of the contract (the bond in suit) and the opinion is in conflict with and violates the provisions of Section 20, Article II, of the Constitution of Missouri, in this: That it deprives the relator of his property (his rights under the contract and the benefits of the contract) without due process of law. Secs. 15, 20, Art II, Mo. Const. (2) The opinion of respondents in holding that there could be no liability under the bond in suit except for the failure of the trustee to account for money which he actually received and that the bond did not by its terms "cover the fraud, misrepresentation or misleading information that Davis, as trustee, might have been guilty of" is in conflict with a prior controlling decision of the Supreme Court of Missouri, to-wit: M., K. & T. Railway Company v. American Surety Company wherein the Supreme Court held that the obligations in a bond executed by a surety for hire are to be construed like the obligations of other contracts and due consideration must be given to all of the language employed therein and of the terms and provisions thereof. It is also in conflict with prior decisions of the other Courts of Appeals of Missouri, to-wit: Calhoun v. Gray, 150 Mo.App. 591, wherein the St. Louis Court of Appeals held that a contract of suretyship is to be interpreted by the same rules and in the same manner as any other contract and that the words used in the bond are to be given effect if at all possible, and the case of Bank v. Russell, 181 Mo.App. 698, wherein the St. Louis Court of Appeals held that a bond (like other contracts) "should be so construed as not to eliminate, but to give effect to all the provisions it contains." M., K. & T. Ry. Co. v. Am. Surety Co., 291 Mo. 92; Calhoun v. Gray, 150 Mo.App. 591; Bank v. Russell, 181 Mo.App. 698; State ex rel. v. Natl. Surety Co., 76 Mo.App. 227. (3) The opinion of the respondents in reversing outright the judgment rendered by the court below in the face of the fact that it was an action at law tried to the court sitting as a jury and in the face of the fact that the finding of the court was general and was for relator and that no declarations of law or instructions were asked or given, is in conflict with and violates the provisions of Section 28, Article II, of the Constitution of Missouri, in this: That it denies to relator the right of trial by jury as vouchsafed to him by said section of the Constitution. Sec. 28, Art. II, Mo. Const. ". . . Where the court in trying issues of facts sits as a jury and gives a general verdict, the judgment will not be reviewed on appeal or by writ of error unless declarations of law are asked and refused in order that the appellate court may see upon what theory the case was tried. Unless this is done, the finding of the court is incontrovertible." Langford's Estate, 272 Mo. 1; Jordan v. Davis, 172 Mo. 599; Beall v. Miller, 207 Mo.App. 32.

Henry L. Jost, Lester G. Seacat and John Campbell for respondents.

(1) There being no specification of any opinion of the Supreme Court of Missouri with which it is claimed by relator that the opinion of the Kansas City Court of Appeals under review is in conflict, the assertion that the action of the Kansas City Court of Appeals is unconstitutional, raises an issue which is irrelevant and immaterial on certiorari. State ex rel. Roberts v. Trimble, 316 Mo. 365; State ex rel. McNulty v. Ellison, 278 Mo. 47; State ex rel. Tummons v. Cox, 313 Mo. 672; State ex rel. Ely v. Cox, 73 S.W.2d 743. (2) Conflicts with other Courts of Appeals and with its own previous decision not being within the scope of this court's review in this form of certiorari, relator's complaint is restricted to M., K. & T. Railway Company v. American Surety Company, 291 Mo. 92, which upon analysis is not controlling, because, (a) the principles of law involved in the two cases were not the same, (b) the two cases involved unlike and dissimilar states of fact, and (c) the principles of law announced in the instant case, both in the original submission and on rehearing are entirely consistent with controlling principles previously announced by this court. State ex rel. Ely, etc., v. Cox, 73 S.W.2d 743; M., K. & T. Railway Company v. American Surety Co., 291 Mo. 92; State ex rel. Jacobs v. Elliott, 157 Mo. 609; State ex rel. Hospes v. Branch, 151 Mo. 622; State ex rel. v. F. & C. Co., 82 S.W.2d 123; McPike v. Kerr's Executor, 29 Mo. 79. (3) Again the relator complains of the unconstitutional conduct of the Kansas City Court of Appeals without specifying any decision with which it is claimed the opinion of the Court of Appeals is in conflict, so that for the same reason and under the same decisions as recited above on assignment of Conflict 1, assignment of Conflict 3, is without merit. (4) Relator's complaint of conflict with In re Lankford's Estate, 272 Mo. 1, and comparable cases has been ruled adversely to him, and his contention that the Kansas City Court of Appeals does not have the power to reverse outright a cause in which they find that a new trial would serve no useful purpose is inconsistent and in conflict with the policy of the law declared by the Legislature and this court that it is the duty of the appellate court to give such judgment as the trial court ought to have given up an examination of the record in appeals or writs of error. State ex rel. McNulty v. Ellison, 278 Mo. 42; Kristanik v. Chevrolet Motor Co., 70 S.W.2d 890; Bloch v. U. S. F. & G. Co., 316 Mo. 278; Sec. 1063, R. S. 1929.

Ellison, J. All concur, except Douglas, J., not sitting because not a member of the court when cause was submitted.

OPINION

ELLISON

Certiorari to the judges of the Kansas City Court of Appeals bringing up the record in State ex rel. Clark v. National Surety Co., 82 S.W.2d 616, which includes opinions by Shain, P. J., and Bland, J., and also incorporates a part of a third opinion by Reynolds, C., in In re Parker's Trust Estate, 228 Mo.App. 400, 67 S.W.2d 115. The facts in detail may be obtained from those cases. We condense them here.

One Charles S. Davis was executor of the estate of Albert G. Parker, deceased, and also trustee of a trust fund of about $ 3000 created by his will. When Davis made his final settlement of the estate he signed and filed with the probate papers a voucher acknowledging receipt of the trust fund by himself as trustee from himself as executor. But he was in fact insolvent then, or at least when he died eighteen months later. The opinion of Shain, P. J., quoting from the opinion of Reynolds, J. (then Commissioner), states there was nothing except the voucher to show Davis had transferred the trust fund to himself as trustee, and he never did account for it. His successor trustee sued the National Surety Company, which had bonded Davis in his capacity as trustee, and obtained a judgment on the bond in the circuit court based upon a general finding by the court sitting as a jury. The bond was as follows:

"We, Charles S. Davis, as principal and National Surety Company, as surety, acknowledge ourselves to owe or stand indebted to the State of Missouri in the sum of $ 6,000.00, upon condition that the said Charles S. Davis has been in the above entitled matter appointed trustee by the aforesaid Circuit Court to receive, take charge of and administer the sum of $ 3128.39. To pay the income therefrom to Mary M. Parker during her life and at her death to pay said sum and any undistributed earning thereon to Mary Katherine Fortney. Now, if the said Charles S. Davis shall well and faithfully perform said trust, pay over and account for the aforesaid money, then this obligation to be void, otherwise to remain in force."

On appeal, the opinions of the respondent judges reversed outright the judgment of the circuit court on two grounds. The first was that upon a proper construction the surety bond protected only money actually coming into Davis' hands as trustee; and that the aforesaid proof of his execution of the voucher receipting for the trust fund was not prima facie evidence of the actual transference of the money from himself as executor to himself as trustee. Standing alone it was in the nature of mere book entry transferring a naked liability, said the opinion. This being the only evidence on the point, the holding was that there had been a failure of proof on the issue.

The successor trustee, Clark, as relator maintains this ruling violated Sections 15 and 20, Article II, Constitution of Missouri, in that it impaired the obligation of the bond, and deprives him of his property without due process of law. We cannot see that these constitutional provisions have anything to do with the case. Section 15 prohibits the passage of any ex post facto law, or law impairing the obligation of contracts or retrospective...