State ex rel. Gatewood v. Trimble

• Decision Date: 11 July 1933
• Docket Number: No. 31087.,31087.
• Citation: 62 S.W.2d 756
• Parties: STATE EX REL. W.O. GATEWOOD, Relator, v. FRANCIS H. TRIMBLE, EWING C. BLAND and HENRY L. ARNOLD, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

62 S.W.2d 756

STATE EX REL. W.O. GATEWOOD, Relator, v. FRANCIS H. TRIMBLE, EWING C. BLAND and HENRY L. ARNOLD, Judges of the Kansas City Court of Appeals.

No. 31087.

Supreme Court of Missouri, Court en Banc.

July 11, 1933.

Certiorari.

WRIT QUASHED.

Thomas H. Kingsley for relator.

(1) In the case of County of Macon v. Farmers Trust Company, this court held and decided that a claim for preference, against the assets of a bank in process of liquidation under the statute, is not required to be included in the claim filed with the Commissioner but may be filed at any time before order of distribution is made by the liquidating court, while the Kansas City Court of Appeals held and decided that such claim for preference must be made in the separate action, provided for in Section 11720, thus establishing a period of limitation expressly denied by the Supreme Court; requiring decision of the question of preference in an action which does not have any control or jurisdiction over the assets of the bank, and, in effect, holding and deciding that such claim preference is required to be included in the claim filed with the Commissioner. County of Macon v. Farmers Trust Co., 29 S.W. (2d) 1096; North Missouri Trust Co. v. Cantley, 39 S.W. (2d) 412; State ex rel. Bromschweg v. Hartman, 221 Mo. App. 215, 300 S.W. 1054. In the case of Hecker v. Bleish, this court held and decided that the circuit court is without jurisdiction to decide any issue not raised by the pleadings and not necessary to a decision of the issues pleaded and that that part of a judgment which undertakes to adjudicate questions, not raised by the issues and denied by the statute to the court, is coram non judice and void; while the Kansas City Court of Appeals held and decided that the question of preference (was?) and should have been adjudicated in the separate action provided by Section 11720, Revised Statutes 1919, and that the circuit court was (authorized?) and required to render judgment on this issue although such issue was not pleaded and was not required to be pleaded in that action, under the authorities cited under point one, and further held and decided that the judgment in the separate action was res adjudicata of such question of preference. Hecker v. Bleish, 319 Mo. 149, 3 S.W. (2d) 1008.

Gardner & Carroll for respondents.

(1) Holding of the Kansas City Court of Appeals that the appellant is estopped by the judgment in cause No. 63372, and the doctrine of res adjudicata, applies, and that the question of preference was ascertained and determined and forever concluded and that it included all questions which might have been urged or interposed in said cause is not in conflict with controlling decisions of the Supreme Court. Chouteau v. Gibson, 76 Mo. 46; 2 Taylor on Evidence, 1425, par. 1513; Tuttle v. Harrill, 85 N.C. 456; Donnell v. Wright, 147 Mo. 639; Spratt v. Early, 199 Mo. 491. (2) Holding of the Kansas City Court of Appeals that when an issue has once been decided by a court of competent jurisdiction in a former trial between the same parties, the former judgment is conclusive as to matters in issue and embraced within the issue and is not in conflict with prior and controlling decisions of the Supreme Court. Melvin v. Hoffman, 235 S.W. 114, 290 Mo. 464; Leslie v. Carter, 268 Mo. 428; Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 147 Mo. 639. (3) Supreme Court in proceedings of this character (certiorari), are concerned only by rulings actually made either expressly or by necessary implications by the Court of Appeals, and the Supreme Court cannot determine the question as to whether the opinion is right or wrong, being bound by conflicts with its own opinions. State v. Daues, 287 S.W. 609; State v. Cox, 9 S.W. (2d) 956.

ATWOOD, J.

This case has recently come to the writer on second reassignment. Relator would have us quash opinion of the Kansas City Court of Appeals in the case entitled In the Matter of the Liquidation of the Citizens Security Bank of Englewood, respondent, v. W.O. Gatewood, Assignee of the Night and Day Bank of St. Louis, appellant (reported in 36 S.W. (2d) 426), because of alleged conflict with certain prior decisions of this court which relator asserts are controlling.

It appears from the opinion in question that while the assets and business of both the Englewood Bank and the Night and Day Bank were in the hands of the State Commissioner of Finance, the Special Deputy Commissioner of Finance then in charge of the affairs of the Night and Day Bank, within the time provided by law, filed claim in writing on behalf of the latter bank for the amount of $7,248.75 with the commissioner in charge of the Englewood Bank, which claim was disapproved and rejected. Thereafter this claim with others was sold and assigned to W.O. Gatewood with approval of the Circuit Court of the City of St. Louis, wherein liquidation of the affairs of the Night and Day Bank was pending. Said assignee thereupon filed a separate action at law (No. 63372) against the Englewood Bank on this claim in the Circuit Court of Jackson County at Independence, which had supervision of the liquidation of said bank, and had judgment for the full amount of the claim as a general claim against the assets of said bank in the hands of said Commissioner of Finance and same was ordered paid out of such assets, although said assignee did not in that cause ask that priority of the claim be determined. No appeal was taken from this judgment. Thereafter, and before any order of distribution of the assets of said bank had been made by said court, the assignee filed petition in said court (case No. 61867) asking that the above mentioned judgment be decreed a preferred claim against the funds of said bank in the hands of the Commissioner of Finance. No answer or demurrer was filed to this petition. A motion to strike was filed by the Finance Commissioner on the ground that the matters pleaded in the petition were res judicata. While the record does not show that this motion was ever heard or directly ruled on by the court it was necessarily ruled by the judgment rendered against the assignee when the cause was heard. The assignee thereupon appealed from this judgment to the Kansas City Court of Appeals and the judgment was affirmed in the opinion here in question.

The appeal was disposed of on the single point that appellant was estopped by the judgment first obtained allowing his claim as a general claim and that the doctrine of res judicata applied. Other points raised were not decided because their decision was not deemed necessary to a determination of the appeal. In thus disposing of the case respondents said: "Without proceeding to determine the points so raised by appellant, there is one point raised by respondent which we think decisive of this appeal, and which we shall proceed to consider. Respondent insists appellant is estopped by the judgment in cause No. 63372, and the doctrine of res adjudicata applies; that the question of preference was ascertained and determined, and forever concluded, and that it includes all questions which might have been urged or interposed in said cause. We hold respondent's position to be good in the respect urged... . It is appellant's position that inasmuch as the petition in cause No. 63372 did not ask the claim be adjudged a preference, the court was without authority to decree the claim to be a common one, and therefore the decree is not binding. It is further appellant's position that the proceeding in the instant case was along lines provided by statute, in that claimant first must establish his claim in a judgment, and thereafter in a separate action the question of preference must be determined, as sought herein in cause No. 61,867. However, on this point it is respondent's position, and we think the correct one, that the question of priority was fully determined in cause No. 63372, and that such determination is against appellant's contention. We hold it not to be the law that a claim must first be reduced to a judgment and then the court having jurisdiction shall, at some future date, pass upon the question of preference, thus going over the entire question again, reviewing the facts and then modifying a judgment rendered at a previous date. It is elementary that courts are not required to do a useless thing... . Except in special cases the plea of res adjudicata applies both to points upon which the court is asked and required to pronounce judgment and to every point probably belonging to the subject matter of the issue, and which the parties in the exercise of reasonable diligence might have brought forward. [Tuttle v. Harrill, 85 N.C. 456.] And so, in the case at bar, even though, as appellant contends, the issue of preference was not raised by the pleadings in cause No. 63372, under the law it could and should have been so raised, that all issues might be determined in that cause." Relator's criticisms are confined to certain parts of the matter here quoted.

Mindful of the provision of our Rule 34 requiring that an applicant for such writ of certiorari shall show in his petition "wherein and in what manner the alleged conflicting ruling arose, and shall designate the precise place in our official reports where the controlling decision will be found," relator herein alleged "that said Kansas City Court of Appeals in its judgment and opinion aforesaid has failed and refused to follow the latest and controlling decisions of the Supreme Court of Missouri, to-wit:

"County of Macon v. Farmers' Trust Co., 325 Mo. 784, 29 S.W. (2d) 1096, decided July 3, 1930, wherein this court has held that a claim for preference need not be made in the claim filed before the Commissioner and may be made at any time before order of distribution is made by the liquidating court, and need not be made at any other time.

"And has refused to follow and contravened Hecker v. Bleish, 319 Mo. 149, 3 S.W. (2d) 1008,...