State v. Allen

• Decision Date: 02 May 1910
• Parties: STATE ex rel. SHIPMAN v. ALLEN et al.
• Court: Missouri Court of Appeals

128 S.W. 809

144 Mo. App. 234

STATE ex rel. SHIPMAN v. ALLEN et al.

Springfield Court of Appeals. Missouri.

May 2, 1910.

Rehearing Denied June 6, 1910.

1. EVIDENCE (§ 553)—EXPERTS—EXAMINATION.

A hypothetical question asked of an expert on the issue of the value of attorney's services in an action on an attachment bond stated that relator was seeking to recover his attorney's fees in the attachment suit, and then asked what would be a reasonable fee for attending to that attachment suit. Held, that the question was not objectionable, as covering services for trying the case on its merits.

2. ATTACHMENT (§ 351)—BOND—APPEAL.

Where, on defendant's plea in abatement to a writ of attachment being sustained, plaintiff in attachment obtained an appeal to the court of appeals, but neglected to prosecute the appeal, whereupon defendant in attachment produced a copy of the judgment and secured its affirmance by the appellate court, attorney's fees necessarily incurred in obtaining the order of affirmance were recoverable in an action on the attachment bond.

3. APPEAL AND ERROR (§ 743)—RECORD— POINTING OUT ERROR.

An appellate court is not required to grope through a voluminous abstract without guide to discover specific testimony objected to.

4. TRIAL (§ 132)—MISCONDUCT OF COUNSEL— CURING ERROR.

In an action on an attachment bond, relator's counsel, after giving a history of the litigation, said: "The evidence will show that they (appellants) tried this suit, and the jury brought in a verdict. They took an appeal, and some three or four years afterwards they tried the case on the merits, and the suit was in our favor." Defendant's counsel thereupon objected, stating: "The records show they took a nonsuit." Held, that the form of defendants' objection cured any prejudice that could have arisen from the misstatement of plaintiff's counsel.

5. ATTACHMENT (§ 350)—ACTION ON BOND— ATTORNEY'S FEES.

In an action on an attachment bond, evidence held to show that the attorneys' fee for services in obtaining a dissolution of the attachment was reasonable, and that the services were reasonably necessary in the defense of the attachment.

6. ATTACHMENT (§ 349)—ACTION ON BOND— DEFENSE OF SUIT—TRAVELING EXPENSES.

In an action on an attachment bond, an allegation in the petition and bill of particulars that plaintiff paid out for railroad fare a certain sum in obtaining a dissolution of the attachment was not supported by evidence that he rode on a pass.

7. APPEAL AND ERROR (§ 1195)—FORMER APPEAL —DETERMINATION—EFFECT.

Where, on a prior appeal, the court held that the evidence was sufficient to withstand a demurrer, such determination is conclusive on a new trial; the evidence being substantially the same.

8. APPEAL AND ERROR (§ 1003)—QUESTIONS OF FACT—WEIGHT OF EVIDENCE.

Under Rev. St. 1899, § 725 (Ann. St. 1906, p. 715), providing that the trial court may award a new trial of any issue on good cause shown, but not more than one new trial of the same issue shall be granted to any one party, while the trial court in its discretion may grant a new trial because the verdict is not in accordance with the weight of the evidence, a verdict may not be overthrown on appeal on that ground, especially where the evidence is sufficient to carry the case to the jury.

9. APPEAL AND ERROR (§ 1097)—DECISION ON FORMER APPEAL—LAW OF THE CASE.

The doctrine of res judicata applies as well to judgments of courts of last resort as to those nisi, so that, where the same action comes before a court of last resort, it is bound by its former decision, with reference to the questions previously decided.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

Action by the State, on the relation of J. W. Shipman, against L. L. Allen and others. Judgment for plaintiff, and defendants appeal. Affirmed on condition.

This is the third appeal in the history of the above-entitled case; the first being reported in 124 Mo. App. 465, 103 S. W. 1090, and the second in 132 Mo. App. 98, 111 S. W. 622.

The controversy, in its origin, grew out of a note dated May 15, 1893, for $450, being the purchase price of an ore crusher sold by Allen, Stark & Co. to W. S. White. The note was made payable to the order of Allen, Stark & Co., and was signed by W. S. White as principal and J. W. Shipman and others as securities. Said note not being paid at maturity, the parties arranged for a new note which was dated November 15, 1893, being for the same amount, payable to the same parties, signed by W. S. White, J. W. Shipman, and others, due three months after date, and was intended to be a renewal note of the first note above described. This second note, as relator J. W. Shipman claims, was invalid and never delivered on account of having been made on certain conditions as to securities besides himself to be procured before the delivery of the note, which conditions, the relator claims, were never complied with. On August 15, 1901, the notes not having been paid, suit was filed in the circuit court of Lawrence county by Allen, Stark & Co. on both of said notes, and a writ of attachment was issued in aid of said suit against J. W. Shipman, the defendant therein and relator herein. The affidavit for the attachment alleged as its ground that the defendant was a nonresident of the state. At the trial, an amended affidavit was filed by said Allen, Stark & Co., which included another ground for attachment, to wit, that the defendant had absented himself from his usual place of abode so that the ordinary process of law could not be served on him. In said suit Allen, Stark & Co. filed their attachment bond as required by law in such cases, executed by L. L. Allen, A. Forsythe, and J. F. Stark, appellants in this proceeding. A demurrer for misjoinder of causes of action was sustained, and plaintiffs elected to proceed upon the note of May 15, 1893, being the first note given. The defendant in said attachment suit defended by filing a plea in abatement. Upon trial of such plea, the issues were found by a jury in favor of the defendant J. W. Shipman. A motion for a new trial was filed, which, after being continued from time to time, was overruled. An appeal was thereupon granted plaintiffs to the St. Louis Court of Appeals. Subsequently a nonsuit was taken on the trial on the merits by reason of an adverse ruling of the court. The plaintiffs in said attachment suit took no further steps to perfect their appeal on the plea in abatement, but at the October term, 1906, of the St. Louis Court of Appeals, the defendant in said suit, J. W. Shipman, presented a certified copy of the record entry of the judgment, etc., on the plea in abatement, and filed therewith a motion to affirm the judgment dissolving the attachment because of the failure of the plaintiffs to prosecute their appeal, which motion was sustained. The present action was filed on February 9, 1906, upon the attachment bond above referred to, in which the relator claimed damages by reason of the attachment suit that was abated. On July 7, 1906, the defendants L. L. Allen and others filed an answer and also a counterclaim in two separate counts based on the two notes, the first count being on the first note dated May 15, 1893, and the second count being on the second note dated November 15, 1893. As a defense to these notes, relator in his reply set up the statute of limitations. Defendants then replied as a defense to the statute of limitations that on the _____ day of February or March, 1901, said relator, J. W. Shipman, departed from and resided out of the state of Missouri until the _____ day of July, 1905, when he returned to this state; that certain payments had been made upon the said notes, the second note having three payments indorsed on the back as follows: On July 18, 1895, $32.50; on November 7, 1895, $11; on May 4, 1896, $38. The relator filed a reply to the new matter thus set up, denying that he had departed from and resided out of the state.

Upon the trial, judgment was rendered for the relator for the sum of $450, from which the defendants have perfected their appeal. The facts will appear more fully in the opinion.

W. Cloud and R. H. Davis, for appellants. R. H. Landrum and William B. Skinner, for respondent.

NIXON, P. J. (after stating the facts as above).

1. In their motion for new trial, appellants set up 16 assignments of errors committed. The first is that the trial court committed error in admitting in evidence the testimony of witnesses Brumback, Gibbs, McPherson, and Thornberry. These witnesses were all attorneys whose testimony was introduced for the purpose of showing the value of the professional services of the relator's attorneys in the attachment suit to which the plea in abatement was sustained. For the purpose of this case, it will not be necessary to take up separately the testimony of these expert witnesses in order to decide the question involved in the objection made to their evidence. They were asked substantially the same questions and gave substantially the same answers. We take the testimony of Norman Gibbs as representative of all. The hypothetical case was stated to the witness, reciting the services rendered by the relator's attorneys in the attachment suit, including the filing of the plea in abatement, the management of the trial of the plea in abatement for relator, and the presenting of the motion in the St. Louis Court of Appeals for the affirmance of the judgment because of the default of appellants in perfecting their appeal. The witness was told that this was a suit by relator upon the attachment bond, and that among other items relator was seeking to recover his attorney's fee in said attachment suit; and he was asked: "What would be a reasonable fee for attending to that attachment suit?" The witness answered: "I would consider $250 a moderate fee." Defendants objected to the question, for the reason that it called for damages not allowed by law on...