Thompson v. Farmers' Exchange Bank

• Citation: 62 S.W.2d 803,333 Mo. 437
• Decision Date: 03 August 1933
• Docket Number: 30079
• Parties: C. D. Thompson, Appellant, v. Farmers Exchange Bank, Trenton National Bank, Citizens State Bank, Trenton Trust Company, International Bank of St. Louis, Bank of Brimson, Drovers & Merchants Bank, St. Joseph, Trenton Hardware Company (all of the above defendants being corporations), Guy Thompson, Walter P. Fulkerson, Nancy Martin, D. C. McVay, Joseph S. Neff, W. O. Garvin, J. C. Barr and A. G. Knight, Trustee
• Court: United States State Supreme Court of Missouri

62 S.W.2d 803

333 Mo. 437

C. D. Thompson, Appellant, v. Farmers Exchange Bank, Trenton National Bank, Citizens State Bank, Trenton Trust Company, International Bank of St. Louis, Bank of Brimson, Drovers & Merchants Bank, St. Joseph, Trenton Hardware Company (all of the above defendants being corporations), Guy Thompson, Walter P. Fulkerson, Nancy Martin, D. C. McVay, Joseph S. Neff, W. O. Garvin, J. C. Barr and A. G. Knight, Trustee

No. 30079

Supreme Court of Missouri

August 3, 1933

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Gossett Ellis, Dietrich & Tyler and Milton V. Thompson for appellant.

(1) Plaintiff's first amended petition sufficiently stated (a) A good cause of action for false arrest and imprisonment; (b) This petition also stated a good cause of action for abuse of process with malicious prosecution. Boerger v. Landenberg, 97 Mo. 390, 10 Am. St. Rep. 322; Tiede v. Fuhr, 264 Mo. 629; Harbison v. C. R. I. & P. Ry. Co., 37 S.W.2d 609; Sec. 30, Art. II, Mo. Const. (2) The purported order of the court in the case of Farmers Exchange Bank et al. v. C. D. Thompson and A. G. Knight, Trustee, in the Grundy Circuit (R. 12) attempting or pretending to adjudge plaintiff Thompson guilty of contempt, was void and the court was without jurisdiction to make such pretended order. (a) It was not due process of law; for that, the court was bound, as a matter of jurisdiction, to use the usual, long established and well known process of compelling a party litigant to deliver possession of property to another adjudged by it to be so delivered. Such process in suits of this character relative to lands in the well known writ of assistance, equivalent in equity to the law writ of habere facias possessionem. State ex rel. v. Evans, 176 Mo. 327; Eck v. Hatcher, 58 Mo. 241; Mason v. Black, 87 Mo. 345; McNealey v. Rouse, 264 S.W. 383; State ex rel. v. Grimm, 243 Mo. 667; Hider v. Sharp, 301 Mo. 627; Farmers Exchange Bank v. Thompson, 309 Mo. 682; State ex rel. v. Wood, 142 Mo. 134; Jones v. Yore, 142 Mo. 44; Wilcox v. Phillips, 260 Mo. 679; Custer v. Kroeger, 313 Mo. 141; 13 C. J. 1316. (3) The cause of action for false arrest and imprisonment was not barred by the twoyear Statute of Limitations, at all events for the reason that appellant as plaintiff commenced this action December 2, 1927 (R. 29,) within one year after December 2, 1926, when he suffered the nonsuit in his case therefor in the Adair Circuit (R. 59). The action is so "commenced" even though clerk does not issue summons until Statute of Limitations, otherwise, would have run. On commencement: State ex rel. v. Wilson, 216 Mo. 215; State ex rel. v. Bates, 286 S.W. 420. On time: Kimm v. Osgood, 19 Mo. 60 (Holds January 12, 1853, is within one year after January 12, 1852); Old Bank of Stoutsville v. Curtiss, 214 Mo.App. 278 (Holds April 26, 1921, was within one year after April 26, 1920); Parsons v. Egyptian Lever, etc., Co., 73 Mo.App. 458. On nonsuit: Preston v. Lead Co., 48 Mo. 541; Wetmore v. Crouch, 188 Mo. 647; Mason v. Ry. Co., 226 Mo. 212. (4) The purported order of the Grundy Circuit Court that appellant, defendant in the case therein, be committed to jail until he purged himself of alleged contempt by delivering some thousands of acres of land in Missouri to the Grundy Land Company, and some other thousands of acres of other land in Missouri and 10,000 acres in Colorado to respondent Knight, as trustee, was entered upon the court's record without jurisdiction so to do; for that, among other reasons, appellant had appealed from the judgment undertaking to require him to deliver possession, the circuit court had lost and was without jurisdiction to entertain a charge of contempt, and determine and commit appellant thereon. This, the Supreme Court, only, had full jurisdiction of that cause and could protect and enforce its jurisdiction and all property and rights thereunder. Farmers Exchange Bank v. Thompson, 309 Mo. 678; McNealey v. Rouse, 264 S.W. 383; Stewart v. Stringer, 41 Mo. 400; Burgess v. O'Donoghue, 90 Mo. 299; State ex rel. v. Grimm, 243 Mo. 667; State ex rel. St. Charles Savings Bank v. Hall, 12 S.W.2d 91; State ex rel. v. Wood, 142 Mo. 127; Cohn v. Lehman, 93 Mo. 584; Case v. Smith, 215 Mo.App. 621; Dick v. Dixon, 147 Mo.App. 69; State ex rel. Bank v. Hall, 12 S.W.2d 91. Section 30, Article 2 of the Constitution of Missouri provides: "That no person shall be deprived of life, liberty or property without due process of law." Section 1102, R. S. 1929, provides that: "When a judgment requires the performance of any other act than the payment of money a certified copy of the judgment may be served upon the party against whom it is given and his obedience thereto required. If he neglect or refuse he may be punished by the court as for a contempt, by fine or imprisonment or both and if necessary by sequestration of property."

Alfred M. Seddon, Paul R. Stinson, E. M. Harber and Henry L. Jost for respondents; Ryland, Stinson, Mag & Thompson, Sebree, Jost & Sebree, Carter, Jones & Turney and William T. Jones, of counsel.

(1) The validity of the judgment, orders and writs of assistance of the Grundy County Circuit Court in the equity suit of Farmers Exchange Bank et al. v. Thompson et al., was conclusively settled by the decision and judgment of the Supreme Court of Missouri (309 Mo. 669, 274 S.W. 745), affirming the judgment and orders appealed from. The decision of the Supreme Court conclusively determined the jurisdiction of the circuit court over the res and of the parties to the equity suit and of the appellant's obligation and duty to obey such judgment and orders of the Grundy County Circuit Court. Farmers Exchange Bank v. Thompson, 309 Mo. 682, 274 S.W. 745; Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 382, 4 S.W.2d 800; Meyer v. Campbell, 12 Mo. 611; Gary Realty Co. v. Swinney, 322 Mo. 460, 17 S.W.2d 509; Wilburn's Admr. v. Hall, 17 Mo. 471; Walter v. Tabor, 21 Mo. 75; Vantine v. Butler, 250 Mo. 450; Custer v. Kroeger, 313 Mo. 141; Haverstock v. Rogers, 177 Mo.App. 450; Railroad v. Bridge Co., 215 Mo. 286; Stegall v. American Pigment & Chemical Co., 182 S.W. 1086; Gary Realty Co. v. Swinney, 317 Mo. 687; State ex rel. Gary Realty Co. v. Hall, 17 S.W.2d 935. (2) Appellant's appeal in the equity suit of Farmers Exchange Bank v. Thompson, having been taken without the giving and filing of a supersedeas bond, as required by statute, did not stay the execution of the judgment and orders of the Grundy County Circuit Court, or supersede, suspend or impair the jurisdiction and authority of that court to execute and enforce its judgment and orders for the delivery of possession of the lands which constituted the res or subject-matter of that suit. Sec. 1022, R. S. 1929; State ex rel. Thompson v. Meyers, 260 S.W. 452; Rodney v. Gibbs, 184 Mo. 11; Burgess v. O'Donoghue, 90 Mo. 302; Vantine v. Butler, 250 Mo. 450; State ex rel. Tuemler v. Goldstein, 209 Mo.App. 113; In re Knaup, 144 Mo. 653; 13 C. J. 16, sec. 19; 13 C. J. 54, sec. 75; State ex rel. v. Dillon, 96 Mo. 56; Albers Comm. Co. v. Spencer, 236 Mo. 628. (3) The Grundy County Circuit Court had full power and jurisdiction to execute and enforce its judgment and orders made and entered in the equity suit of Farmers Exchange Bank v. Thompson, and to compel the obedience of appellant, Thompson, thereto, by means of the civil contempt proceeding had and maintained in such equity suit. The constitutional requirement of due process was fully satisfied by service upon appellant (ten days before the contempt hearing) of the citation and notice to appear in the Grundy County Circuit Court and show cause why he should not be committed for contemptuous disobedience of that court's judgment and orders. There is no violation of the constitutional requirement of due process in that the contempt hearing was held in the absence of appellant, and without his personal attendance at such hearing. Leman v. Krentler-Arnold Hinge Last Co., 52 (U. S.) S.Ct. 238, 76 L.Ed. 340; State ex rel. Smith v. Empie, 221 Mo.App. 724; 13 C. J. 71, sec. 96; Ex parte Mason, 16 Mo.App. 44; Anderson v. Perkins, 52 Mo.App. 527, 10 L. R. A. (N. S.) 1102; Kammer v. State, 180 N.W. 39; Barclay v. Barclay, 184 Ill. 471, 56 N.E. 821; Blackmer v. United States, 76 L.Ed. (U. S.) 333; State v. Rose, 85 P. 803; Shull v. Boyd, 251 Mo. 478. (a) Appellant may not collaterally attack the judgment and orders of Grundy Circuit Court, nor may he question, collaterally, the erroneous exercise, if so, of that court's jurisdiction, to enforce its orders and judgment upheld by this court, on appellant's former appeal. Babb v. Brurere, 23 Mo.App. 606; State ex rel. v. Broaddus, 216 Mo. 343; Enterprise F. and C. Co. v. Davidson, 211 Mo.App. 667; Gulick v. Hamilton, 293 Ill. 261, 127 N.E. 383; State ex rel. Gentry v. Westhues, 286 S.W. 398; 6 R. C. L. pp. 537, 538, sec. 49; 32 C. J. 482; 15 R. C. L. 84, sec. 314; 15 R. C. L. 838, sec. 311; McClure v. Paducah, 90 Mo.App. 567; Baldwin v. Iowa Trav. Men's Assn., 283 U.S. 522, 75 L.Ed. 1244; Jefferson City B. and T. Co. v. Blaser, 318 Mo. 373; Abernathy v. Ry. Co., 287 Mo. 30; Rosenheim v. Hartsock, 90 Mo.App. 357; Lewis v. Morrow, 89 Mo. 174. (b) Respondent Knight, as trustee, was virtually a receiver of the Grundy Circuit Court in respect to said real estate, which for all practical purposes was trust property, and in the custody of the court, since the court was engaged in administering the trust. McKinney v. Landon, 209 F. 306; 1 Clarke on Receivers (2 Ed.) p. 381; O'Neill v. Welsh, 245 F. 266; Central Co. v. Bank, 255 F. 59; Havner v. Hegnes, 269 F. 542; Lydick v. Naville, 287 F. 483; Ins. Finance Co. v. Sec. Co., 42 F.2d 933; Chillicothe Furn. Co. v. Revelle, 14 F.2d 501; Sullivan v. Algrem, 160 F. 369;...