State ex rel. Howard v. Martin
| Citation | 141 S.W.2d 186,235 Mo.App. 406 |
| Parties | STATE OF MISSOURI AT THE SUGGESTION AND RELATION OF MRS. E. M. GEORGE HOWARD, IN HER INDIVIDUAL CAPACITY AND AS ADMINISTRATRIX OF THE ESTATE OF C. H. HOWARD, DECEASED, RELATOR, v. HONORABLE THOMAS W. MARTIN, JUDGE OF THE CIRCUIT COURT OF VERNON COUNTY, MISSOURI, RESPONDENT |
| Decision Date | 01 April 1940 |
| Court | Court of Appeals of Kansas |
Preliminary rule discharged and permanent writ denied.
B. C Howard for relator.
(1) The circuit court has no jurisdiction under the Missouri Declaratory Judgment Law to pass upon, modify or construe a final judgment rendered primarily against an insurer and secondarily against an employer, or to declare a final judgment invalid and enjoin the enforcement thereof against an insurer whether or not the judgment had been paid by the employer. Phelps v. Scott, 30 S.W.2d 31; Orchard & Wilhelm Co. v. Sexton et al. (Nebr.), 229 N.W. 17; Bank v. Bulkley, 68 Mo.App. 327; 34 C. J. Judgments, sec. 991; Declaratory Judgment Law, Mo. Session Acts, 1935, p. 218; 16 Am. Juris., Declaratory Judgments sec. 23; Backs v. Bardo, 234 Ky. 211, 27 S.W.2d 960; Kings County Trust Co. v. Melville, 216 N.Y.S. 278; Ladner v. Seigel, 294 Pa. 368, 144 A. 274; Williamsport v. Williamsport Water Co., 300 Pa. 439, 150 A. 652; Ex parte Darby, 157 S.C. 434, 154 S.E. 632; Heller v. Shapiro, 208 Wis. 310, 242 N.W. 174; Shearer v. Baker, 207 Ky. 455, 269 S.W. 543. (2) The circuit court has no jurisdiction under the Missouri Declaratory Judgment Law to pass upon, modify or determine the validity of a final judgment or declare the legal effect thereof, or enjoin the enforcement of said final judgment because the contract of insurance upon which the judgment is based was procured by alleged fraud. Declaratory Judgment Law, Missouri, Session Acts, 1935, p. 218; 16 Am. Juris., Declaratory Judgments, sec. 23; Backs v. Bardo, 234 Ky. 211, 27 S.W.2d 960; Kings County Trust Co. v. Melville, 216 N.Y.S. 278; Ladner v. Seigel, 294 Pa. 368, 144 A. 274; Williamsport v. Williamsport Water Co., 300 Pa. 439, 150 A. 652; Ex parte Darby, 157 S.C. 434, 154 S.E. 632; Heller v. Shapiro, 208 Wis. 310, 242 N.W. 174; Shearer v. Baker, 207 Ky. 455, 269 S.W. 543; Green v. Inter-Ocean Casualty Co., 203 N.C. 767, 167 S.E. 38; Nesbit v. Manufacturers Ins. Co., 310 Pa. 374; Shelton v. Powell, 128 So. 258; Union Trust Co. v. Georke Co. (N.J.), 142 A. 560; Loesch v. Manhattan Life Ins. Co., 218 N.Y.S. 412. (3) The writ of prohibition is a proper remedy under the facts in the case at bar. State ex rel. Orr v. Latshaw, 291 Mo. 592, 237 S.W. 770; State ex rel. v. Latshaw, 30 S.W.2d 105; State ex rel. v. Sevier, 98 S.W.2d 677; State ex rel. v. Jackson, 84 S.W.2d 988; State ex rel. v. Terte, 25 S.W.2d 459; State ex rel. v. Harris, 81 S.W.2d 632; State ex rel. v. Seehorn, 55 S.W.2d 714; State ex rel. v. Beck, 63 S.W.2d 814; State ex rel. v. McQuillan, 165 S.W. 713.
Ewing, Ewing & Ewing for respondent.
(1) The writ of prohibition is not the proper remedy and should not issue for the reason that respondent has jurisdiction of the subject-matter and of the parties to the action pending in respondent's court, and that a determination by respondent of the issues in such action will not constitute a usurpation or abuse of jurisdiction. Sec. 1609, R. S. of Mo., 1929; State ex rel. Realty Co. v. Thomas, 278 Mo. 85, 98; State ex rel. Caldwell v. Cockrell, 280 Mo. 269, 289; State ex rel. v. McQuillin, 262 Mo. 266, 171 S.W. 72; Kelley v. Howard, 123 S.W.2d 584. (2) Respondent has jurisdiction to hear and determine all of the issues raised in the action pending in respondent's court--(a) Because a court of general equitable jurisdiction, without regard to the declaratory judgment statute, may in the exercise of its discretion hear and determine the issues and controversy which are the subject-matter of the action pending in respondent's court. Secs. 1223-4, R. S. of Mo., 1929; Restatement of Law--Restitution, pp. 70-72; Kelley v. Howard, 123 S.W.2d 584; La Abra Silver Mining Co. v. United States, 175 U.S. 423, 44 L.Ed. 223; Missouri Cattle Loan Co. v. Life Ins. Co., 330 Mo. 988, 52 S.W.2d 1; Phelps v. Scott (Mo.), 32 S.W.2d 71; Cohen v. New York Mut. Life Co., 50 N.Y. 610, 10 Am. Rep. 522; Slingerland v. Slingerland (Minn.), 124 N.W. 19; Schaeffer v. Fisher, 242 N.Y.S. 308; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 81 L.Ed. 617; Builders Casualty Co. v. Paquette et al., 21 F. Sup. 858. (b) Because the Missouri Declaratory Judgment Statute expressly grants to courts of equity jurisdiction of controversies of such class and directs that such courts shall exercise such jurisdiction if a judgment will finally terminate such controversy. Declaratory Judgment Act, Laws of Missouri, 1935, pp. 218-219; Nashville Railroad Co. v. Wallace, 288 U.S. 249, 77 L.Ed. 730; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 81 L.Ed. 617; Building Casualty Co. v. Paquette et al., 21 F. Sup. 858; Queen v. Mayor of Wellington, 15 New Zeal. 72; Insured Life Fund v. Ward, 77 P.2d 890; Borchard--Declaratory Judgments (1934 Ed. ); Illinois Law Review, Nov., 1939, pp. 250-251; 31 Mich. Law Review 180; Sec. 1226, R. S. of Mo., 1929; Phelps v. Scott, 30 S.W.2d 71. (c) Because under the Workmen's Compensation Statute an award for compensation is not assignable and multiplicity of suit can be avoided by hearing all the issues and determining all the rights and liabilities in this proceeding. Sec. 4432, R. S. of Mo., 1929; Restatement of Law--Contracts, pp. 1087, 1109 and 1110; 13 C. J. 411-412; Prime v. Dunaway (Tenn.), 50 S.W.2d 223; Phelps v. Scott, 30 S.W.2d 71. (3) The action pending in respondent's court does not seek to modify or determine the validity or construe the final judgment entered by respondent pursuant to the mandate of the Kansas City Court of Appeals. Kelley v. Howard, 123 S.W.2d 584; Sec. 3342, R. S. of Mo., 1929; Secs. 1223-4, R. S. of Mo., 1929; Phelps v. Scott, 30 S.W.2d 71.
Original Proceeding in Prohibition.
Bruce Dodson, Attorney in fact for Subscribers at Casualty Exchange, and Bruce Dodson and Ralph Dodson, doing business as Bruce Dodson and Company, hereinafter called insurers, brought suit against C. H. Howard and E. M. George Howard, hereinafter referred to as the Howards, Clay Kelley, hereinafter designated employee, and Woody Swearingen, in the Circuit Court of Vernon County on January 14, 1939.
The second amended petition (the petition here involved) of the insurers alleged that on November 30, 1937, the Workmen's Compensation Commission, in a proceeding then pending before it, in which the employee was claimant and the Howards and insurers were defendants, made an award of compensation in favor of the employee as against the Howards in the amount of $ 2035.33 and denied compensation as against the insurers; that employee and the Howards appealed from said award to the Circuit Court of Vernon County, which latter court affirmed the award. Whereupon the Howards alone appealed to the Kansas City Court of Appeals; that the judgment appealed from was reversed and the cause remanded with direction to modify the award adjudging the insurers primarily liable and the Howards secondarily liable; that, thereafter, on March 20, 1939, the circuit court rendered judgment in accordance with the aforesaid direction; that on March 16, 1938, said award was paid in full to the employee by Woody Swearingen "with funds of, and, on behalf of, the Howards," and that the employee then and there purported to assign said award to Swearingen.
The petition further alleged the clerk of the circuit court of Vernon County, at the request of Swearingen, has issued execution on said judgment directed to the sheriff of Jackson County, Missouri; that said sheriff has served said execution upon the Commerce Trust Company and attempted to attach the bank account of the insurers in said Trust Company.
The petition further charged the judgment was void, because it has been paid; because Swearingen acquired no title to the judgment under the purported assignment thereof; because the judgment was paid on behalf of, and with the funds of the Howards; that execution could not be legally issued at the request of either Swearingen or the employee.
The prayer was for a temporary stay of proceedings under the execution and garnishment pending the action; to determine and declare whether the judgment was valid, and for such further relief as the court deemed proper.
The second count of the petition alleged that insurers on August 1, 1936, issued to C. H. Howard, doing business as Nevada Baking Company, a contract of insurance, which, by its terms insured the Howards against loss sustained by them on account of injury sustained by any of their employees in consideration of an "advance deposit" upon the estimated annual premium for such contract; that said insurance terminated on November 3, 1936, because of the nonpayment of the required premium; that one of the Howards, on December 11, 1936, called at the office of the insurers for the purpose of obtaining reinstatement of the policy; that insurers then stated to the said Howard that they would not reinstate said policy if any of the employees of the Howards had suffered an accident subsequent to November 3, 1936; that the said Howard falsely and fraudulently stated to insurers that no employee of the Howards had received injury subsequent to November 3, 1936, when in fact said Howard knew that one of said employees (Clay Kelley) had, on December 10, 1936, sustained a serious injury while at work in the bakery of the Howards and that such representations were made for the purpose of obtaining reinstatement of the policy; that insurers relied upon said statement, accepted the sum of $...
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