Thierry v. Scherrer

• Decision Date: 03 March 1928
• Docket Number: 26319
• Parties: Charles W. Thierry, Appellant, v. John J. Scherrer, Jr., and National Bank of Commerce of St. Louis, Executors of Last Will of Charles W. Thierry, Sr., and Annie Frances Scherrer and Madam Carrie Agnes Thierry
• Court: Missouri Supreme Court

3 S.W.2d 722

319 Mo. 241

Charles W. Thierry, Appellant, v. John J. Scherrer, Jr., and National Bank of Commerce of St. Louis, Executors of Last Will of Charles W. Thierry, Sr., and Annie Frances Scherrer and Madam Carrie Agnes Thierry

No. 26319

Supreme Court of Missouri

March 3, 1928

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

John B. Reno for appellant.

(1) The deed of July 27, 1910, having been "cancelled and for naught held," title reverts to the original holders prior to the making of that deed, thus placing the parties in statu quo; that is, vesting title in the heirs of Annie Thierry, as to the parcels of property held by her in fee simple, subject to the husband's right of curtesy. Stumpf v. Stumpf, 7 Mo.App. 272; Mays v Pryce, 95 Mo. 603. (2) That part of the decree vesting fee-simple title in Charles W. Thierry, Sr., is null and void for want of jurisdiction in the trial court. The theory of the plaintiff in that case was that by the fraud of defendants operating equally upon him and his wife, Annie defendant procured the conveyance of July 27, 1910. The trial court had jurisdiction to try that aspect of the case. Defendant asked further relief, namely that the court declare that, prior to July 27, 1910, Annie Thierry, wife of plaintiff, held the various properties in controversy as trustee for plaintiff, by reason of the fact that plaintiff had paid the consideration therefor and caused title to be taken in his wife Annie. As to that aspect of the case the trial court had no jurisdiction, because neither Annie Thierry nor her heirs were parties, and hence neither had their day in court, and the decree vesting title in Charles W. Thierry, Sr., was null and void and constituted a taking of property without due process of law, in violation of Sec. 30, Art. II, of the Constitution of Missouri, and of Section 1 of the Fourteenth Amendment to the Constitution of the United States. Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376; City of St. Louis v. Mo. Pac. Ry. Co., 278 Mo. 205; State ex rel. Deems v. Holtkamp, 245 Mo. 655; State ex rel. Davis v. Ellison, 208 S.W. 438; Troyer v. Mead, 96 Mo. 480. (3) Plaintiff is not estopped to assert any interest he may have in the estate of his mother by reason of any fact, evidence, pleading or judgment in the former case, nor is such judgment res adjudicata against plaintiff in the present suit. Keokuk & Western Railroad Co. v. Missouri, 152 U.S. 301; Postal Tel. Co. v. Newport, 247 U.S. 464; Hannah v. Slush, 5 F.2d 718; Van Horst v. Thompson, 18 F.2d 177; Trescott v. White, 11 F.2d 845.

William F. Smith and Thomas E. Mulvihill for respondents.

(1) Appellant is estopped by the judgment rendered in the case of Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946, from now claiming as heir of Annie Thierry, any right, title or interest in or to the property described in appellant's amended petition. Appellant here (defendant in the former case) was an heir of Annie Thierry at the time the former case was tried, she having died before the amended petition and defendants' answer were filed. The claim now made by appellant to the property in question as such heir was available to him as a defense in the former case, upon any issue he could have set up, but failed and neglected to do so. Whatever issues might have been settled in the former suit, if they had been timely brought forward, but were not, are as conclusively settled by the adjudication as were those especially and specifically adjudicated. He cannot now be heard to object to the regularity of that proceeding or urge here in support of his rights to the property in question any claim which he might have presented in defense of the former action. Eversmeyer v. Broyles, 280 Mo. 109; St. Louis v. United Railways Co., 236 Mo. 424; Henderson v. Henderson, 3 Hare, 115; Summet v. Realty Co., 208 Mo. 510; Custer v. Krueger, 113 Mo. 142; Lemon v. Drainage District, 310 Mo. 182; Donnell v. Wright, 147 Mo. 646. (2) The judgment rendered in the case of Thierry v. Thierry is res adjudicata and binding upon appellant for the reason that the parties in the former case and the subject of the action are practically the same in the instant case. Whatever the form of action, the issue is deemed the same whenever it may in both actions be supported by substantially the same evidence. If so supported, a judgment in one action is conclusive upon the same issue in another action, though the cause of action be different. Summet v. City Realty Co., 208 Mo. 501; Freeman on Judgments (5 Ed.), 1448. (3) While it is true that Annie Frances Scherrer, one of the respondents herein, did not formally appear as a party to the record in the former case in the trial court, but did appear as a party to the record in this court, nevertheless, she was to all intents and purposes a party to the record in the trial court, inasmuch as she was named as residuary legatee in the will of Charles W. Thierry, deceased, and vitally interested in the result of that trial. Moreover, she testified in said cause, aided in the preparation of same, and frequently consulted and advised with the attorneys during the progress of the case. Mo. Pac. Ry. Co. v. Levy, 17 Mo.App. 508; Landis v. Hamilton, 77 Mo. 565; Wood v. Ensee, 63 Mo. 193. (4) Where a specific fact or question had been determined in a suit and the same fact or question is again put in issue in a subsequent suit between the same parties, the adjudication in the prior suit is conclusive without regard to whether the cause of action is the same in both suits. Mo. Pac. Ry. Co. v. Levy, supra; Case v. Garton, 33 Mo.App. 606; Herman on Estoppel and Res Adjudicata, sec. 111.

OPINION

Gantt, J.

Plaintiff filed suit in the Circuit Court of the City of St. Louis on May 18, 1923, to partition the following described land:

"The western thirty-seven feet and six inches in lot 34 in Mount Cabanne Addition and in City Block 4841 of St. Louis, Missouri, fronting thirty-seven feet and six inches on the south line of Cabanne Avenue by a depth southwardly of 150 to an alley fifteen feet wide; subject to restrictions, etc., recorded in Book 856, page 221.

"Lots number 45 and 46 in block number 3 of the Laclede Race Track Subdivision and in block 3974 of the city of St. Louis, having together a front of fifty feet on the north line of Swan Avenue by a depth northwardly of one hundred thirty-two feet and six inches, more or less.

"A lot in block number 7 of Payne's Tower Grove Park Addition, in City Block 4103 as per plat of said addition attached to Commissioner's Report of record in the Recorder's Office of said City of St. Louis in Book 420 at page 234, and described as follows: Commencing at a point on the north line of Botanical Avenue, distant one hundred and fifty feet west of its intersection with the west line of Alfred Avenue, running thence northwardly and parallel to said west line of Alfred Avenue one hundred and eighty-six feet to a point, thence westwardly and parallel to said north line of Botanical Avenue fifty feet to a point, thence southwardly and parallel to the said west line of Alfred Avenue one hundred and eighty-six feet to the north line of Botanical Avenue, thence eastwardly along said north line of Botanical Avenue fifty feet to the place of beginning. The northern thirty feet of the above-described lot is to be used as a private street, laid out for the exclusive use and benefit of the present and future owners of lots in said Tower Grove Park Addition, subject to restrictions contained in deed recorded in Book 1508, page 103.

"Lots number 26, 27 and 28 in City Block number 2079 of the city of St. Louis, said lots having a front of eighty-five feet eight and three-quarters inches on the west line of Pennsylvania Avenue by a depth westwardly of one hundred and twenty-five feet and two inches and being bounded north by lot number 25, east by Pennsylvania Avenue, south by the north line of Labadie & Lynch Addition in said block, and west by an alley twenty feet wide. Subject to restrictions contained in deed recorded in Book 1493, page 513."

The petition states that plaintiff and defendants Annie Frances Scherrer and Madam Carrie Agnes Thierry are the children of Annie Thierry, who died intestate on May 21, 1920, and Charles W. Thierry, Sr., who died testate on October 1, 1922; that the mother, Annie Thierry, at the time of her death owned the above-described land, and that plaintiff and his sisters inherited the land from her; that upon the death of the mother he became a tenant in common with his sisters; that he has an undivided one-third interest and that the other parties claim an interest and are made parties hereto by reason thereof, the extent and measure of said interest being unknown to plaintiff. Wherefore, plaintiff prays that the interests of the parties be adjudged and partition made, etc.

The answer states that the mother, Annie Thierry, at no time owned an interest in the land; that upon her death plaintiff did not become a tenant in common with his sisters, and that plaintiff does not own an undivided one-third interest or any interest whatsoever; that Annie Frances Scherrer owns the whole interest by virtue of the will of her father, who devised to her all his land; that Madam Carrie Agnes Thierry is a member of the Order of the Sacred Heart, and, as such is not permitted to own property; that the father left her one dollar and no more for this reason and for the further reason that he had expended a large sum of money on her education; that the title to and the beneficial ownership of the land were, as between Charles W. Thierry, Sr., and Charles W. Thierry, Jr., an issue in a former suit in the Circuit Court of the City of St. Louis, wherein Charles W....