State v. Reynolds

• Decision Date: 06 December 1922
• Docket Number: No. 22559.,22559.
• Citation: 245 S.W. 1065
• Parties: STATE ex rel. MESKER et al. v. REYNOLDS et al., Judges.
• Court: Missouri Supreme Court

245 S.W. 1065

STATE ex rel. MESKER et al. v. REYNOLDS et al., Judges.

No. 22559.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Certiorari by the State, on the relation of Benjamin T. Mesker and others, against George D. Reynolds and others, Judges of the St. Louis Court of Appeals, seeking to quash the record of the court as conflicting with decisions of Supreme Court. Writ quashed.

R. M. Nichols, of St. Louis, for relators.

Max Haas and Henry H. Furth, both of St. Louis, for respondents.

Statement.

WOODSON, C. J.

This is a proceeding by way of certiorari brought by the relators against the judges of the St. Louis Court of Appeals, seeking to quash the record of that court as being in conflict with certain decisions of this court ("In re Lankford Estate, 272 Mo. 1, 197 S. W. 147; Lewis v. Barnes, 272 Mo. loc. cit. 407, 199 S. W. 212; Wiley v. Harlow, 274 Mo. loc. cit. 175, 202 S. W. 533; State ex rel. v. Sturgis, 276 Mo. loc. cit. 571, 208 S. W. 458") in a case where Mesker et al. were plaintiffs and Friedman et al. were defendants.

The relators here, the plaintiffs in the original suit, out of which this proceeding grew, sued the Friedmans, the respondents here, in the circuit court of the city of St. Louis for the sum of $6,000, and stated their cause of action in three counts in the petition, namely: (1) For money had and received; (2) for money laid out and expended; and (3) for money loaned and advanced.

The trial in the circuit court resulted in a verdict and judgment for the plaintiffs for the full amount sued for, and the defendants duly appealed the cause to the St. Louis Court of Appeals, which in due time reversed the judgment of the circuit court, and the plaintiffs sued out of this court this writ of certiorari. The case was duly submitted to Division No. 1 of this court, and it was assigned to Commissioner Brown to write the opinion, which, when presented for adoption, was by the court adopted, Woodson, J., dissenting. Thereupon the case was transferred to court en banc, and was again argued and submitted, and was this time assigned to the undersigned to write.

I have carefully considered both the opinion of the Court of Appeals, and that of Commissioner Brown, and have unhesitatingly reached the conclusion that the opinion of the Court of Appeals correctly declared the law of the case, and that there is no conflict between the opinion of the Court of Appeals and that of this Court, and upon the facts of the case the judgment was properly reversed.

The opinion of the Court of Appeals is terse, clear, and forceful, and for that reason hereby adopt it as the opinion in this court. It is as follows:

Opinion.

"We think the testimony conclusively shows that on or about the 3d of November, 1909, the Friedmans owned the property in question, and desired to secure a loan of $6,000 on the same, but did not desire to become personally liable, but that the property should be held for the debt. In order to do this, they transferred the property to Faherty, the straw man in the original transaction. Faherty executed the principal note for $6,000 and the interest notes to Dudley, who indorsed the notes without recourse. Faherty deeded the property back to the Friedmans, they taking the property subject to the deed of trust for $6,000.

"Benjamin Friedman testified that this was his object in conveying the property to Faherty. There is no fraud alleged, nor was any proved. If fraud had been alleged and proved, we would be confronted with a different situation, resulting, perhaps, in entirely different conclusions.

"At the time the Friedmans first secured the loan in 190...