State v. Trimble

• Decision Date: 03 December 1923
• Docket Number: No. 24818.,24818.
• Citation: 302 Mo. 699,258 S.W. 1013
• Parties: STATE ex rel. BLYTHE et al. v. TRIMBLE et al., Judges.
• Court: Missouri Supreme Court

258 S.W. 1013

302 Mo. 699

STATE ex rel. BLYTHE et al. v. TRIMBLE et al., Judges.

No. 24818.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Motion for Rehearing Denied March 4, 1924.

Certiorari to Xmases City Court of Appeals.

Certiorari by the State of Missouri, on the relation of Samuel J. Blythe and others, to review the opinions and judgment of Francis S. Trimble and others, constituting the Kansas City Court of Appeals; in an action against relators. Judgment quashed.

Waggener, Challis & Crane, of Atchison, Kan., and Culver, Phillip & Voorhees, of St. Joseph, for relators.

Strop & Silverman, of St. Joseph, for respondents.

HIGBEE, C.

Certiorari to review the opinions and judgment of the Kansas City Court of Appeals in Woolston v. Blythe and others, 251 S. W. 145, an action to recover damages alleged to have been sustained by the plaintiff, A. B. Woolston, by the diversion of the waters of Sugar creek upon plaintiff's farm, in consequence of which he lost the use thereof for the years 1908, 1909, and 1910. "

A brief statement will suffice. The alit was instituted August 17, 1911. It is asserted by the relators, but denied by the plaintiff, that B. 3. Moore was joined as a codefendant in the petition and that later the action was dismissed as to him. The opinion is obscure on this point; the original petition is not in the abstract. The plaintiff died before the trial, and the cause was revived in the name of George A. Woolston as administrator of his estate. The administrator filed a second amended petition `February 12, 1018, on which plaintiff, by the verdict, recovered judgment for actual and punitive damages, which was affirmed on appeal.

Plaintiff built a levee on the east side of his farm in the year 1907 to protect it from the overflow of the waters of Sugar creek. In the fall of that year a freshet caused. If break in this levee. In April, 1908, plaintiff undertook to repair this break; but, before he had proceeded far with the work, B. F. Moore sued out a temporary injunction restraining him from repairing it. Moore filed the usual injunction bond with four of the relators as sureties thereon. On the day after this writ was served, the relators, with their employees, cut a swath 30 or 40 feet wide through the willows on a 25-acre tract lying east of plaintiff's farm, removed a section of plaintiff's fence at the west and of the swath, and cut down the west bank of the creek at the east end thereof, so that when the floods came and the rains descended, plaintiff's farm was flooded, and he lost the use thereof for the years 1908, 1909, and 1910. The injunction was dissolved in the year 1910, when plaintiff at once repaired his levee. Plaintiff's damages on the injunction bond were assessed at $1,600, and same were paid. These did not include damages for loss of the use of the farm. This suit was thereafter instituted on August 17, 1911,

The second amended petition alleging that George A. Woolston was the legally appointed, qualified, and acting administrator to the estate of A. B. Woolston, deceased, was filed on February 12, 1918, the day of the trial. The opinion recites this allegation was denied in the answer filed on the same day. It also states that at the close of plaintiff's case the defendant "suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator or the estate of A. B. Woolston, deceased," and moved the court to abate the action, which motion was overruled. The defendant offered and was refused leave to file an amended answer setting up those facts.

The court instructed the jury:

"That they should disregard all evidence of the judgment assessing damages upon the injunction bond in the Moore case; that said judgment constituted no defense in this case."

At the close of paragraph 20 of the learned opinion, the court said:

"The witness Barnes, as shown in respondent's additional abstract of the record, testified that there was no water running through the swath at the time the willows were cut and being placed. No damages to the land or crops were asked or assessed upon the bond. However, Woolston was not permitted to repair his levee during the pendency of the injunction suit, and no doubt he could have recovered in that suit for damages, if any, resulting to him by reason of such prevention, but he could not recover any damages against the defendants in the case at bar for the reason that they were not parties to the suit, and, as before stated; this cause of action is for damages caused by their acts alone. The petition asked only for those damages, and the jury in plaintiff's instructions were confined to such damages as were suffered by plaintiff's intestate, caused by the affirmative acts of the defendants pleaded in the petition. `We think, then, that this suit was maintainable against the present defendants in the case, and that the action of the court was proper. It makes no difference if Moore was originally made a party to this suit; it did not go to the jury against him, so we need not go into that. The judgment in the injunction suit is not res adjudicate." 251 S. W. loc. cit. 154.

In the learned opinion, loc. cit. 149, it is also said:

"At the close of plaintiff's case defendant suggested and proved that on April 4, 1917, the plaintiff had filed his final settlement and had been finally discharged as administrator of the estate of A. B. Woolston. Defendants then moved the court to abate the action because George A. Woolston was not then such administrator. The motion to abate was overruled by the court, whereupon defendants asked leave to amend their answer by setting" up said facts. The court first ruled that the answer could be so amended, and that the plaintiff might move to strike out the amendment, and this was done."

1. It appears from the learned opinion that at the close of plaintiff's evidence in chief the defendants suggested and "proved" that on April 4, 1917, the administrator had filed his final settlement and was discharged, and moved the court to abate the action because George A. Woolston was not then such administrator. After arguments of counsel, the court refused leave to file the amended answer averring the final settlement and discharge of the administrator on April 4, 1917, in conformity with the proofs already admitted in evidence. The learned Court of Appeals justifies this refusal under sections 1346, 1347, and 1351, R.. S. 1919, which deal with the revival of actions in case of the death, marriage, or disability of a party to an action. Obviously, these sections of the statutes have no application or relevancy to the case in hand.

The death of A. B. Woolston was suggested, and the cause was revived in the name of George A. Woolston, as administrator of the deceased, and the second amended petition was filed on February 12, 1918, averring that he was then the legally appointed, qualified, and acting administrator of said deceased, nearly a year after he had been discharged. There was then no such pretended administrator or administration in existence. George A. Woolston was no longer the personal representative of the deceased A. B. Woolston, and had no authority to represent his estate or to act therefor. The administration had been closed; he was functus officio. The order of revival was without warrant and unauthorized by the statute. Prior v. Kiso, 98 Mo. 303, 314, 6 S. W. 898, II "The administrator (Banter) had * * * been discharged, * * * therefore could no longer act." Grayson v. Weddle, 83 Mo. 523, 539. See, also, Wright v. Hetherlin, 277 Mo. 99, 209 S. W. 871.

In the circumstances of this case there can be no merit in the contention that the granting leave to file the amended answer conforming to the proof already adduced would work a surprise to the plaintiff, who was masquerading as administrator, and that its filing was discretionary with the court. The original answer denied his representative capacity. We think the learned opinion is clearly in conflict with the decisions of this court cited supra.

2. The opinion approves an instruction given the jury that—

"They should disregard all evidence of the judgment assessing damages upon the injunction bond in the Moore case; that said judgment constituted no defense in this case." Paragraph 20.

The damages on the bond were assessed and paid before this suit was instituted.

A. B. Woolston's land was protected from overflow water from Sugar creek by a levee on the east line of his farm. A freshet in 1907 had caused a washout in this levee. The Moore injunction restrained him from repairing this gap. As stated in the opinion, this injunction did not permit him to repair this break in the gap during its pendency. On its dissolution in 1910, he immediately repaired the gap. The injunction tied his hands and was the proximate cause of the loss of the use of his farm during the years 1908, 1909, and 1910. It is not contended that the levee, if repaired, would not have averted the water from his farm. The injunction bond referred to in the opinion is in the form required by the statute (section 1957, R. S. 1919); it is in the sum of $2,000 and is conditioned that the obligors shall pay all sums of money, damages, and costs that shall be adjudged against them if the said injunction shall be dissolved.

The general rule is that the damages to be assessed on the bond on the dissolution of the injunction, "are such and such only as are actual, and the proximate result of the restraining order." Holloway v. Holloway, 103 Mo. 274, 284, 15 S. W. 536; Meysenburg, Trustee, v. Schlieper, 48 Mo. 426, 431; Albers Comm. Co. v. Spencer, 236 Mo. 608, 630, 139 S. W. 321, Ann. Cas. 1912D, 705; Kennedy's Administratrix v. Hammond, 16 Mo. 341. The obligors were clearly liable for all damages directly occasioned by the injunction which expressly restrained Woolston from closing the break in the...