State ex rel. Johnson v. Arnold

• Decision Date: 13 July 1927
• Docket Number: 27516
• Parties: The State ex rel. Nelson E. Johnson, Judge of Circuit Court of Jackson County, and Steve Efthemis and T. Hallak, Doing Business as Hallak Candy Company, v. Henry L. Arnold et al., Judges of Kansas City Court of Appeals, and White Satin Sugar Company
• Court: Missouri Supreme Court

297 S.W. 59

317 Mo. 858

The State ex rel. Nelson E. Johnson, Judge of Circuit Court of Jackson County, and Steve Efthemis and T. Hallak, Doing Business as Hallak Candy Company, v. Henry L. Arnold et al., Judges of Kansas City Court of Appeals, and White Satin Sugar Company

No. 27516

Supreme Court of Missouri

July 13, 1927

Record quashed.

Paul G. Koontz and John L. Gaylord for relators.

(1) An order setting aside a default judgment is not a final judgment, is not appealable, and an attempted appeal does not operate to suspend or divest the jurisdiction of the trial court. State ex rel. v. Ellison, 277 Mo. 294; State ex rel. v. Evans, 184 Mo. 632; Sec. 1469, R S. 1919; Bussiere's Administrator v. Sayman, 257 Mo. 303; Holder v. Chidester, 193 S.W. 568; Breed v. Hobart, 187 Mo. 140; Crossland v Admire, 118 Mo. 87. (2) An interplea is independent of and collateral to the attachment suit. Brennan v O'Driscoll, 33 Mo. 372; Giett v. McGannon, 74 Mo.App. 209; Keet-Roundtree D.G. Co. v. Hodges, 175 Mo.App. 484; Torreyson v. Turnbaugh, 105 Mo.App 439. (3) An appeal does not operate to divest or suspend the jurisdiction of the trial court over proceedings independent or collateral thereto. State ex rel. v. Guthrie, 245 Mo. 144; State ex rel. Riefling v. Sale, 153 Mo.App. 273. (4) The writ of prohibition lies only against those exercising judicial functions. State ex rel. v. Barton, 300 Mo. 76.

Samuel Eppstein for respondents.

(1) The judgment appealed from is a final judgment. Miller v. Crawford, 140 Mo.App. 711; Scott v. Smith, 133 Mo. 618. (2) No interplea undisposed of was pending at the time attachment was sustained and judgment on the merits entered. An interplea is a statutory replevin engrafted upon a suit by attachment and counsel for interpleader had the right to elect their remedies and after election they are estopped to try the same remedy that they had at the beginning. Nancing v. Jacob, 93 Mo. 331; Estes v. Reynolds, 75 Mo. 563; Stroller v. Coats, 88 Mo. 514. (3) The judgment of a court of competent jurisdiction, directly upon the same point, is a plea in bar, or as evidence conclusive between the same parties and their privies, is a complete estoppel in every other jurisdiction. Townsend v. Townsend, 60 Mo. 246; Summit v. City Realty, 208 Mo. 501. (4) Where the effect of a judgment is to decide a particular issue of fact, that issue must be held res adjudicata as to the parties then before the court and it is immaterial in what form the issue was raised. Young v. Burd, 124 Mo. 590; Wiggin v. St. Louis, 135 Mo. 558. (5) The conclusiveness of a judgment includes the finding of any fact which was in issue and was necessarily decided. State ex rel. v. Branch, 134 Mo. 592; Short v. Taylor, 137 Mo. 517; Spradling v. Conway, 51 Mo. 54; Givens v. Thompson, 110 Mo. 432. (6) In a proceeding by interplea, in an attachment suit, the right of the property is the pertinent issue and the interplea should be heard and determined before the attachment. Brownwell v. Barand, 139 Mo. 142; State v. Langdon, 57 Mo. 350; Ladd v. Cousins, 35 Mo. 513. (7) Where an appeal has been granted, the lower court can make no order in the case, except to vacate the order of the appeal during the term. Burgess v. O'Donoghue, 90 Mo. 299; Foster v. Rucker, 26 Mo. 494; Ex. Natl. Bk. v. Allen, 68 Mo. 474; State v. Dusenberry, 112 Mo. 277; State ex rel. v. Tales, 143 Mo. 63; State ex rel. v. Broddus, 210 Mo. 613; Havens v. Mo. Railroad, 155 Mo. 225.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

This is an original proceeding by certiorari to review the record of the Kansas City Court of Appeals in making permanent a writ of prohibition directed against the relators herein. Relators seek to quash the record of the Court of Appeals, alleging a conflict between the opinion of that court in the prohibition case mentioned and controlling decisions of this court.

In the original suit involved, the White Satin Sugar Company sued on an account and attached certain property. Judgment by default was rendered and the attachment sustained. On the motion of one of the defaulting defendants the default judgment was set aside and a new trial granted. From this ruling the judgment plaintiff (White Satin Sugar Company) appealed, and also applied to the Court of Appeals for a writ of prohibition to prevent a hearing by the Circuit Court of Jackson County on an interplea involving the ownership of the property attached, pending said appeal. The Court of Appeals issued a temporary writ of prohibition, and later, after a hearing on the merits, made the writ permanent.

As a preliminary matter, we sustain the motion of relators to strike from the files the return of the respondent White Satin Sugar Company. The writ of certiorari issued by this court being employed only for a review of the record of the Court of Appeals, the return of the White Satin Sugar Company serves no purpose and has no place in this proceeding. [Sec. 8, Art. 6, Mo. Const., Amendment of 1884; State ex rel. v. County Court, 237 Mo. l. c. 469; State ex rel. v. Bland, 168 Mo. l. c. 7.]

The opinion of the Court of Appeals, being short, will now be quoted in full. It reads as follows:

"Opinion of the Kansas City Court of Appeals.

"Original Proceeding in Prohibition.

'Relator herein, by writ of prohibition, seeks to prevent the court below from proceeding to the trial of the cause on its merits, after an appeal from a rule and order of said court sustaining a motion to set aside a default judgment and the granting of a new trial.

"The original suit was based upon an unpaid account for goods purchased and in order thereof an attachment was issued wherein certain candy-making machinery was attached. There was a judgment by default for the amount of the claim and the attachment was upheld. Thereafter, a motion for a new trial and to set aside the default judgment was sustained; from which ruling of the court relator appealed to this court, where the same is now pending. Later, an amended petition in interpleader was filed by one of the parties defendant in the main suit, and the trial court proposed to proceed to a hearing of the case on its merits on the interplea.

"Upon this state of facts, relator applied to this court for relief and a preliminary writ of prohibition was issued. Parties have filed briefs and the cause is now before us for a determination of the question of making the writ permanent. The only question presented for our consideration at this time is whether relator's appeal from the ruling of the trial court in sustaining defendants' motion for a new trial and in setting aside the default judgment operates as a stay of all further proceedings and orders by the trial court in the case.

"The ownership of the property attached was the point directly involved in the original suit, and the questions form the basis of the interplea. It is relator's position that where an appeal has been granted, as here, the court below can make no order in the case except to vacate the order of appeal. As shown by the record which is properly certified by the clerk of the circuit court, no order vacating the order of appeal was made by the court. The record discloses that the appeal from the action of the court in sustaining the motion for a new trial was made on April 22, 1926, and that on May 8, 1926, the amended interplea was filed and the court proposed to proceed with a hearing thereon.

"We do not understand that it is defendants' position that plaintiff could not properly appeal from the order of the court granting a new trial, and we need not, therefore, discuss this point. It was held in Haven v. Ry. Co., 155 Mo. 216 (opinion by Marshal, J.), that an appeal from an order of the circuit court brings only the ruling of the trial court before the appellate court for review; that the immemorial practice obtains in considering the sufficiency of the trial court's reasons for granting a new trial.

"The Supreme Court in Burgess v. O'Donoghue, 90 Mo. 299, held, in effect, that an appeal to the Supreme Court from a judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, all jurisdiction over the cause; and this is true, although no appellant's bond was given and there was no supersedeas of the judgment, and, pending the appeal the circuit court can make no order vacating the judgment (citing Ladd v. Cousins, 35 Mo. 513; DeKalb v. Hixon, 44 Mo. 341). To the same effect is Obarkoetter v. Luebbering, 4 Mo.App. 431. The judgment herein appealed from, to-wit, the order of the court sustaining defendants' motion for a new trial, is a final judgment, by default (Miller v. Crawford, 140 Mo.App. 711). The default judgment herein was final and an appeal from an order setting same aside was allowed. Under the law, such appeal operates as a stay of all further proceedings by the trial court until the pending appeal is determined. The cases cited and arguments presented in the very able brief filed by defendants do not refute the plain law in this respect.

"For the reasons herein stated, the preliminary writ of prohibition issued herein is hereby made permanent.

"Bland, J., concurs; Trimble, P. J., absent.

"Henry L. Arnold, J."

We note that the opinion says: "The only question presented for our consideration at this time is whether relator's appeal from the ruling of the trial court in sustaining defendants' motion for a new trial and in setting aside the default judgment operates as a stay of all further proceedings and orders by the trial court in the case." (Italics ours.) We note also that the opinion further says: "We do not understand that it is defendants' position that plaintiff could not properly appeal from the order of the court...