Terminal Railroad Assn. of St. Louis v. Schmidt

• Decision Date: 03 July 1944
• Docket Number: No. 38935.,38935.
• Citation: 182 S.W.2d 79
• Parties: TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant, v. JOHN J. SCHMIDT, Executor of the Estate of ERNEST W. ALY, Deceased, and CHARLES P. NOELL.
• Court: Missouri Supreme Court

182 S.W.2d 79

TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant, v. JOHN J. SCHMIDT, Executor of the Estate of ERNEST W. ALY, Deceased, and CHARLES P. NOELL.

No. 38935.

Supreme Court of Missouri.

Division Two, July 3, 1944.

Motion for Rehearing or to Transfer to Banc, Overruled September 5, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.

AFFIRMED.

Joseph A. McClain, Jr., Arnot L. Sheppard, Louis A. McKeown and Albert E. Schoenbeck, for appellant.

(1) Respondent Noell is not entitled to have any allowance made for his counsel fees in the injunction suit herein, nor is he entitled to any interest on any fund, or any expenses incurred in connection with that action. By reason of his suspension from the practice of law between June 30, 1936, and April 4, 1940, his contract of employment with Ernest Aly became void, his attorney's lien upon Aly's cause of action was lost, he was unable to fulfill his contract of employment with Aly, he had no interest in Aly's judgment; and, as a consequence, no interest in the injunction suit. Therefore, he cannot be allowed any fees, interest or expenses in connection with that case. In re Noell, 234 Mo. App. 1162, 96 S.W. (2d) 213; Kimmie v. Terminal Railroad Assn., 126 S.W. (2d) 1197; Egan v. Waggoner, 41 N.D. 239, 170 N.W. 142; Davenport, Trustee, v. Waggoner, 49 N.D. 592, 207 N.W. 972, 45 A.L.R. 1126; In re Woodworth, 85 F. (2d) 50; Fletcher v. Krise, 120 F. (2d) 809. (2) Appellant is not estopped to take the position that respondent Noell cannot recover any counsel fees, interest or expenses, on the ground that it made him a party defendant in the injunction suit. The record facts are insufficient to show an estoppel by record. 31 C.J.S., sec. 5, p. 193 et seq. (3) The record facts fail to show an estoppel in pais. 19 Am. Jur., sec. 86, pp. 739-40; Blodgett v. Perry, 97 Mo. 263; Curtis v. Browne, 63 Mo. App. 431. (4) No action by appellant could nullify the suspension of respondent Noell, or revive his right to share in the proceeds of the Aly judgment, contrary to the holdings in In re Noell, supra, and Kimmie v. Terminal Railroad Assn., 126 S.W. (2d) 1197. (5) He was estopped by law to claim any interest in such proceeds, and, therefore, cannot plead estoppel against appellant. C.H. Albers Comm. Co. v. Spencer, 236 Mo. 608. (6) To permit him to plead estoppel against appellant would be contrary to public policy. 5 Am. Jur., sec. 249, pp. 410, 411. (7) Estoppel can never be used to create a cause of action. Its purpose is always to preserve rights, never to create them. Berry v. Mass. Bonding & Ins. Co., 203 Mo. App. 459; McLain v. Mercantile Trust Co., 237 S.W. 506; National Fire Ins. Co. of Hartford, Conn., v. Winger, 106 S.W. (2d) 10; Shartel v. Mo. Utilities Co., 331 Mo. 337, 53 S.W. (2d) 395, 89 A.L.R. 607; Moss v. Hamilton, 303 Mo. 302; 10 R.C.L., sec. 25, p. 697; 19 Am. Jur., sec. 40, p. 639. (8) Under the doctrine of avoidable consequences the duty rested upon respondent Noell to disclaim any interest in the subject matter involved in the injunction suit, viz., the proceeds of the judgment in the Aly case, and thereby to minimize potential damages under the injunction bond. McCormick on Damages, p. 127; Lawson v. Brokmann, 116 Kan. 102; McCauley v. McElroy, 199 S.W. 317; Galbraith v. Thayer, 147 Miss. 536, 113 So. 180, 53 A.L.R. 288; 28 Am. Jur., sec. 345, pp. 519-520. (9) The allowances of fees, interest and expenses by the trial court are grossly excessive, are based upon improper and immaterial evidence, and are in violation of both statutory and case law. Some of the fees allowed herein were unnecessarily incurred and are not justified by the law. 28 Am. Jur., sec. 345, p. 519; 32 C.J., sec. 825, p. 478; Neiser v. Thomas, 46 Mo. 47; Crane v. Village of Roselle, 157 Ill. App. 595; Collins v. Sinclair, 51 Ill. 328; Hotchkiss v. Platt, 8 Hun, 46; 143 A.L.R. 685; 2 High, Injunctions (4th Ed.), sec. 1688, p. 1636. (10) The fees allowed by the trial court do not conform to the standard enunciated by the courts to be used in determining the amount of attorneys' fees allowed. 7 C.J.S., sec. 191, p. 1079; Trimble v. Kansas City, S. & G. Ry. Co., 201 Mo. 372, 100 S.W. 7; Alexander v. Colcord, 85 Ill. 323. (11) The fees allowed by the trial court were based upon immaterial and improper evidence. Crane v. Village of Roselle, 157 Ill. App. 595; 43 A.L.R. 672; 7 C.J.S., sec. 191, p. 1080; 5 Am. Jur., sec. 198, p. 379. (12) A comparative analysis shows that the weight of proper evidence does not support the excessive fees allowed. 143 A.L.R. 718; Crane v. City of Roselle, 157 Ill. App. 595. (13) Approval of the exorbitant and unreasonable fees allowed by the trial court will set a public standard which will discourage or prevent individual citizens from seeking injunctions to which they may be justly entitled. (14) The sum released by the dissolution of the injunction in this suit, exclusive of interest and costs, was $40,000. Ten per centum of this sum would be $4000. Under our statutes there cannot be an allowance of damages upon a bond given in a suit to stop the collection of money, in excess of 10 per centum of the amount of money released by the dissolution of the injunction, exclusive of interest and costs. Therefore, any allowance in excess of $4000 was unwarranted by law and directly contrary to the statute. Sec. 1673, R.S. 1939; Kennedy v. Hammond, 16 Mo. 341; St. Louis v. Alexander, 23 Mo. 483; Hale v. Meegan, 39 Mo. 272; 2 Sutherland on Statutory Construction (3rd Ed.), sec. 3709, p. 255. (15) There can be no allowance of interest upon interest, or, in other words, compound interest, as the law frowns upon more than simple interest. Secs. 3228, 3229, R.S. 1939; 1 Sedgwick on Damages (9th Ed.), secs. 333-346; Cherokee Nation v. United States, 270 U.S. 476, 46 S. Ct. 428, 70 L. Ed. 694; Blanchard v. Dominion Natl. Bank, 130 Va. 633, 108 S.E. 649, 27 A.L.R. 78; Stoner v. Evans, 38 Mo. 461; Redman v. Hampton, 26 Mo. App. 504; Sanguinette v. Webster, 153 Mo. 343, 54 S.W. 563; Williams v. Carroll County, 167 Mo. 9, 66 S.W. 955; Clemen's Administrator v. Dryden's Administrator, 6 Mo. App. 597; 1 Sutherland on Damages (4th Ed. 1916), sec. 373. (16) The trial court erred in striking the tenth ground assigned in the motion for a new trial, on the ground of impertinence. The word "impertinence" in an equity proceeding means that the matter stricken is not pertinent to the issues; in law, that the matter is surplusage. The matter contained in the tenth assigment in appellant's motion for a new trial is anything but not pertinent to the issues. 49 C.J., sec. 81, p. 83; Stokes v. Farnsworth, 99 F. 836; Chew v. Eagan, 87 N.J. Eq. 80, 99 Atl. 611; Schenley Distillers Corp. v. Renken, 34 F. Supp. 678.

Cox, Blair & Kooreman, Edgar & Matthes and Harry S. Rooks for respondent, John J. Schmidt, Executor.

(1) Appellant's point (1) relates to respondent Charles P. Noell, exclusively, and is not briefed in this brief on behalf of respondent John J. Schmidt, executor. (2) The sufficiency of the evidence to sustain the judgment appealed from is not reviewable because appellant's abstract omits the injunction bond on which the proceeding is based (Exhibit A of Motion to Assess Damages, referred to at Abstract page 4 and page 71) and omits all the other exhibits of respondent Schmidt, namely, Exhibits B, C, D, E, F, G, H, I, J, K and L mentioned on pages 103 and 104 of the abstract, so that said abstract does not contain the evidence necessary for a review of the sufficiency of the evidence as required by Rule 13 of this court. Bueker v. Aufderheide, 345 Mo. 833, 136 S.W. (2d) 281; Rule 13, Supreme Court of Missouri. (3) Appellant's assignment that "Some of the fees allowed herein were unnecessarily incurred and are not justified by the law," does not present a reviewable issue since it does not specify with particularity the matter referred to as required by Rule 15 of this court. Jeck v. O'Meara, 343 Mo. 559, 122 S.W. 897; St. Louis v. Central Inst., 149 S.W. (2d) 790; Rule 15, Supreme Court of Missouri. (4) Appellant's assignment that "The fees allowed by the trial court do not conform to the standard enunciated by the courts to be used in determining the amount of attorneys' fees allowed," does not present a reviewable issue since it does not specify with particularity the matter referred to as required by Rule 15 of this court. Jeck v. O'Meara, 343 Mo. 559, 122 S.W. 897; St. Louis v. Central Inst., 149 S.W. (2d) 790; Rule 15, Supreme Court of Missouri. (5) Appellant's assignment that "The fees allowed by the trial court were based upon immaterial and improper evidence," does not present a reviewable issue since it does not specify with particularity the matter referred to as required by Rule 15 of this court. Jeck v. O'Meara, 343 Mo. 559, 122 S.W. 897; St. Louis v. Central Inst., 149 S.W. (2d) 790; Rule 15, Supreme Court of Missouri. (6) Appellant's assignment that "a comparative analysis shows that the weight of proper evidence does not support the excessive fees allowed," does not present a reviewable issue because, in this jury-waived case, the weight of the evidence is not reviewable, the trial court's findings of fact being conclusive, since there was substantial evidence in support thereof. Helmkampf v. Wood, 85 Mo. App. 227; Farasy v. Hindert, 110 S.W. (2d) 785. (7) This proceeding to assess damages on the injunction bond is in the nature of a new, separate and independent suit. Stine v. Southwest Bank, 98 S.W. (2d) 539. (8) It is triable to a jury as of right. Sec. 1673, R.S. 1939; Home Mutual Ins. Co. v. Baumann, 14 Mo. 74. (9) And it is reviewable, as such. Quinlivan v. English, 44 Mo. 46. (10) Appellant's assignment that "Approval of the exorbitant and unreasonable fees allowed by the trial court will set a public standard," etc., is mere argument not presenting a reviewable issue on appeal. (11) Section...