State ex rel. Kirby v. Trimble

• Decision Date: 18 November 1930
• Docket Number: No. 30194.,30194.
• Citation: 32 S.W.2d 569
• Parties: THE STATE EX REL. GEORGE W. KIRBY ET AL. v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.
• Court: Missouri Supreme Court

32 S.W.2d 569

THE STATE EX REL. GEORGE W. KIRBY ET AL. v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.

No. 30194.

Supreme Court of Missouri, Division One.

November 18, 1930.

Certiorari to Kansas City Court of Appeals.

WRIT QUASHED.

Gresham & Gresham and Eastin & McNeely for relators.

(1) Relators say that respondents have ruled: (a) That the decree entered in the case of Brady, Trustee, v. Bank of Dearborn and Millspaugh, is admissible in evidence in the case of Brady, Trustee, v. Kirby et al., though Kirby and his co-defendants were not parties to the action in which the decree was rendered and did not stand in privity with the defendants therein. Upon this proposition respondents state in their opinion: "Defendants object to the introduction of the pleading and judgment in the case referred to and now strenuously contend that these records were not properly admitted in testimony and cannot be considered as having any bearing on the controversy." While the opinion does not specifically rule in so many words that the papers objected to were admissible, they were yet given force and effect and the decision is made to depend upon their presence in the record. The ruling was therefore that the trial court was correct in receiving them in evidence. This is contrary to Cravens v. Jameson, 59 Mo. 74. There was no privity between the defendants and any of the parties to the earlier action. These defendants could not stand in privity with the holder of their own note. All of the parties to the earlier action were at the time the suit was brought hostile to these defendants. Henry v. Woods, 77 Mo. 281. See also Womach v. St. Joseph, 201 Mo. 478; Williams v. Barkley (N.Y.), 58 N.E. 768. (b) That the decree thus entered, when received in evidence, "foreclosed" the question of title to the note sued on in the case of Brady, Trustee, v. Kirby et al., and that Kirby and his co-defendants could not dispute the title of the plaintiff to the note. Respondents said: "Before bringing the present suit, plaintiff, as such trustee, instituted a proceeding against the Bank of Dearborn and Frank C. Millspaugh, State Finance Commissioner, in charge of the Bank, in which a decree was entered surrogating plaintiff as trustee, to all the rights and remedies of the Commerce Trust Company in and to the promissory note sued upon herein, as well as other collateral security which had been held by the Trust Company as aforesaid, and granting him specific relief. In support of the contention that the note was not legally pledged to the Trust Company, defendants rely upon Sec. 11762, R.S. 1919, which provided, at the time of the alleged pledging of the note, that a cashier or other officer or employee of a bank should have no power to pledge any notes of a bank until `authority shall have been given by the board of directors, a written record of which proceeding shall first have been made.' We need not decide the question as to whether, in view of the statute, the note in suit was lawfully pledged to the Commerce Trust Company, for the reason that this question has been foreclosed by the circuit court in a decree rendered by it in the suit by plaintiff against the Bank and the Commissioners of Finance, to which we have alluded. In that decree it was established that the plaintiff was the lawful holder of the note." Such a decision is contrary to the rulings of this court upon facts identical with the facts in this case, in McDonald, Admr., v. Matney, 82 Mo. 363; Quigley v. Mexico Southern Bank, 80 Mo. 296. These cases are affirmed by a long line of decisions of this court. Crispen v. Hannavan, 50 Mo. 419; Cravens v. Jameson, 59 Mo. 68; Henry v. Woods, 77 Mo. 280; Russell v. Grant, 122 Mo. 180; State ex rel. v. Johnson, 123 Mo. 54; State ex rel. v. St. Louis, 145 Mo. 567; Overshiner v. Britton, 169 Mo. 350; Womach v. St. Joseph, 201 Mo. 478; Charles v. White, 214 Mo. 211; Mo. Kan. & Tex. Ry. Co. v. Surety Co., 291 Mo. 108 to 111; Northstine v. Feldmann, 298 Mo. 379; Handlan v. Wycoff & McMahon, 293 Mo. 694. With these authorities supporting relators, they maintained that the decree should not have been received in evidence and that the case should have been determined upon Sec. 11762, R.S. 1919. Under the plain terms of the statute, and such cases as Bank v. Lyons, 220 Mo. 554; Bank v. Bank, 244 Mo. 580, and Taylor v. Fuqua, 203 Mo. App. 586, the hypothecation of the note to the Commerce Trust Company was void and passed no title to that company. If that company had no title, there could be no subrogation, and an assignment would convey no better title than the assigner had, nor could a court upon the facts as they are shown to exist in this case, decree title in the assignee. (c) Since the opinion makes such pointed reference to the decree and the pleadings supporting it, this court will treat these papers as a part of the opinion and review the construction given to them. State ex rel. Hayes v. Ellison, 191 S.W. 49. (d) Where the parties are identical, the issues must be identical also, or there is no estoppel. 34 C.J. 915, sec. 1325; St. Joseph v. Ry. Co., 116 Mo. 636; Bell v. Hoagland, 15 Mo. 360; Wright v. Salisbury, 46 Mo. 26; Spurlock v. Railway, 76 Mo. 67; Dolph v. Casualty Co., 303 Mo. 546; Short v. Taylor, 137 Mo. 527; Baker v. Lane, 137 Mo. 688; Foot v. Clarke, 102 Mo. 394; State ex rel. v. Patton, 271 Mo. 559; Mangold v. Bacon, 237 Mo. 517; Womach v. St. Joseph, 201 Mo. 480.

T.C. Sparks, James H. Hull and H.G. Leedy for respondents.

(1) The only function of certiorari from the Supreme Court to a Court of Appeals is to keep the inferior court within the bounds of its jurisdiction, and unless its decision clearly conflicts with a prior decision of the Supreme Court, the writ of certiorari will be quashed. State ex rel. Curtis v. Broaddus, 238 Mo. 189; State ex rel. v. Becker, 316 Mo. 865, 293 S.W. 783; State ex rel. v. Cox, 19 S.W. (2d) 695; State ex rel. v. Trimble, 20 S.W. (2d) 46; State ex rel. v. Daues, 315 Mo. 22, 285 S.W. 479; State ex rel. v. Allen, 313 Mo. 384, 282 S.W. 46. (2) If the Supreme Court has not passed upon a case involving "identity of principles" upon equivalent or similar facts, there is no conflict, and the opinion and decision of the Court of Appeals may not be quashed. The proceeding does not take the place of an appeal or writ of error, and this court will not determine whether the opinion and decision in question is right or wrong. State ex rel. v. Sturgis, 276 Mo. 559, 208 S.W. 458; State ex rel. v. Trimble, 20 S.W. (2d) 46; State ex rel. v. Trimble, 315 Mo. 1295, 290 S.W. 115; State ex rel. v. Allen, 267 S.W. 379; State ex rel. v. Allen, 303 Mo. 608, 262 S.W. 43. (3) The general rule undoubtedly is that a judgment operates as an estoppel only in actions between the parties to the judgment and their privies. All of the decisions cited by the relators were in cases in which the rule was applied. The decision of the Court of Appeals gives full recognition to the rule, and the decisions applying it, but it in nowise conflicts with them, for it expressly holds that the decision is in no manner based on an estoppel. (4) While the general rule is that a judgment operates as an estoppel only in actions between the parties to the judgment and their privies, it is also settled that a judgment is admissible as against third persons where it is offered as a link in a chain of title, or as a muniment of title, or to prove the indebtedness of the judgment debtor and the amount thereof, or as evidence of other facts as between the holder of the judgment and the persons against whom it was rendered. Foster v. Nowlin, 4 Mo. 24; Walsh v. Agnew, 12 Mo. 526; Cravens v. Jameson, 59 Mo. 74; Fields v. Hunter, 8 Mo. 128; Dempsey v. Schawacker, 140 Mo. 680. (5) The relator has cited no decision of this court or of any other court with which the decision of the Court of Appeals is in conflict, and there appears no case which is in conflict.

GANTT, P.J.

This case came to me on reassignment. Relators seek to have quashed an opinion of the Kansas City Court of Appeals in Brady, Trustee, v. Kirby et al. The facts are therein stated as follows:

"This is a suit on a promissory note in the sum of $2500, dated Dearborn, Missouri, July 20, 1923, due six months after date, payable to the Bank of Dearborn and signed by the defendants as makers. The note bears the following indorsement upon the back thereof: `Bank of Dearborn by John W. Tays, Cashier.'

"At the end of all the testimony the court refused defendants' instruction in the nature of a demurrer to the evidence, and gave plaintiff's instruction directing a verdict for him. A verdict was accordingly rendered in favor of plaintiff in the amount of the note, interest and attorney's fees. Defendants have appealed.

"The facts show that in 1918, the Dearborn Electric Light & Power Company, of which defendants were stockholders, borrowed $4500 from the Bank of Dearborn, giving its note for said amount, with the present defendants as sureties thereon; that on or about July 20, 1923, there had been paid by these defendants on said indebtedness the sum of $2,000 and accrued interest; that on that day a new note (the note in suit) for $2500 was given the Bank of Dearborn, due six months after date, which note was signed by the defendants only.

"On December 20, 1922, the Bank of Dearborn (hereinafter called the Bank) borrowed from the Commerce Trust Company of Kansas City (hereinafter called the Trust Company) the sum of $37,000, pursuant to a resolution shown in the minutes of a meeting of the board of directors of the Bank held on December 16, 1922. This resolution did not mention anything about placing collateral with the Trust Company to secure the note, but did recite that the note to the Trust Company `carry the individual indorsements of the board of directors' of the Bank of Dearborn. Accordingly a note in the sum of $37,000 was given by the Bank to...