Tillman v. Deese
| Decision Date | 04 December 1972 |
| Docket Number | 25892,Nos. 25980,s. 25980 |
| Citation | 488 S.W.2d 206 |
| Parties | Temple H. TILLMAN et al., Plaintiffs-Respondents, v. Sam DEESE and Dorothy Deese, Defendants-Appellants. The RUBENSTEIN COMPANY, Plaintiff-Respondent, v. Price WILLIFORD et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Gene A. DeLeve, Berman, DeLeve, Kuchan & Chapman, Kansas City, for Temple H. Tillman, and others.
Michael J. Albano, Graham, Paden, Welch & Martin, Independence, for Sam H. Deese, and others.
Gene A. DeLeve, Berman, DeLeve, Kuchan & Chapman, Kansas City, for Rubenstein Co.
Michael J. Albano, Graham, Paden, Welch & Martin, Independence, for Price Williford, and others.
Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and WILLIAM PETERS, Special Judge.
At the suggestion of this Court and with the consent of the parties, these cases have been consolidated for purposes of appeal. The procedural context in which these cases arise is quite complicated, and requires statement in some detail.
Cause #25892 was filed on December 17, 1969, and was assigned to Division 8 of the Circuit Court, Sixteenth Judicial Circuit. This case involves a suit by The Rubenstein Company (hereinafter referred to as 'Rubenstein') against Williford, Sleyster, Mark Deese and Sam Deese, copartners, d/b/a Bishop Furniture Company (hereinafter referred to collectively as 'the Bishop partners'). In this case, Rubenstein sues to collect $3,491.30 for merchandise sold and delivered to the partners.
While that lawsuit was pending in Division 8, certain proceedings intervened in cause #25980, which was at that time before Division 11 of the same Circuit Court. Cause #25980 started originally as a suit on a promissory note against Sam Deese (one of the Bishop partners) and his wife, and judgment had been entered in that case against those defendants on June 23, 1969. An auction sale of the Bishop Furniture Company inventory took place on April 9, 1970. Thereupon, the judgment creditors in cause #25980 caused garnishment in aid of execution to be issued against the auctioneers, the judgment creditors claiming a one-fourth interest under their judgment against Sam Deese.
After being served with the garnishment, the auctioneers filed a motion in cause #25980 for interpleader. The motion alleged that in addition to the claim under the garnishment, conflicting demands to the auction proceeds had been made upon them by the other Bishop partners, and also by various concerns claiming to be creditors of the partnership. Said interpleader was allowed, the auctioneers paid the net sale proceeds into the registry of the court, the auctioneers were thereupon discharged, and the various claimants were ordered to present their claims in the proceedings before Division 11.
In response to that order, an answer and cross-claim was filed on behalf of ten partnership creditors, including Rubenstein. These claims were based upon goods and services furnished to the partnership by each of the various creditors. The claim on behalf of Rubenstein alleged an indebtedness of $3,491.30 for the agreed price and reasonable value of merchandise delivered to the partnership on April 11, 1969. A claim was also filed before Division 11 by Williford and Sleyster, in which they alleged that Sam Deese had no legal or equitable interest in the proceeds of the auction, and they demanded that the funds be paid to them as the remaining copartners, d/b/a Bishop Furniture Company.
No reply having been filed by any parties to the cross-claim of the partnership creditors, they filed motion for summary judgment. No notice of that motion was given to the Bishop partners. On June 29, 1971, the motion for summary judgment was sustained, and a judgment entry was made in favor of the various partnership creditors, including judgment for Rubenstein against the partners individually in the sum of $3,491.30, plus interest. The court also ordered a distribution of the fund in court pro rata among the partnership creditors, since the aggregate of claims allowed exceeded the auction proceeds deposited. The amount paid to Rubenstein out of those funds came to $2,685.55.
Thirty-one days after the entry of that judgment, counsel for the creditors wrote to counsel for the partners demanding payment for the balance due under the personal judgment. After receipt of that demand, the Bishop partners filed in Division 11 a Motion to Set Aside Judgment for Irregularity. That motion was overruled, and an appeal was filed by the partners on November 15, 1971.
Thereafter, on August 12, 1972, cause #25892 came on for trial before Division 8. The Bishop partners in this proceeding then presented pleas of res judicata and election of remedies based upon the judgment which had been entered in Division 11. Rubenstein offered in open court to dismiss its petition in cause #25892 if the partners would agree that the judgment entered by Division 11 was valid and enforceable. This offer was refused by the partners. Thereupon, the pleas of res judicata and election of remedies were overruled by Division 8. Rubenstein proceeded to introduce evidence of the indebtedness due to it. The partners introduced no evidence on their own behalf, contenting themselves with objecting to the evidence offered by Rubenstein. Division 8 proceeded to enter judgment for Rubenstein for $3,491.30, together with interest, but gave credit for the $2,685.55 which Rubenstein had received in Division 11 from the proceeds of the auction sale. The partners thereupon appealed from that judgment also.
Rubenstein conceded at oral argument before this Court, as it did in Division 8, that it has no right to two judgments for the same amount, and it has agreed that cause #25892 may be reversed if the judgment in cause #25980 is affirmed.
The judgment in cause #25980 will be affirmed on the grounds hereinafter stated. Accordingly, pursuant to the stipulation mentioned, the judgment in cause #25892 will be reversed. 1
The basis for affirmance of cause #25980 is the failure of the Bishop partners to meet the conditions required for the setting aside of a judgment after the expiration of the normal time specified for after trial motions. In the case of late motions to set aside, such as filed by the Bishop partners here, the movant must show that he has not been guilty of culpable negligence, and he must make a showing of a meritorious defense. These are standard requirements in proceedings such as motions to set aside default judgments and equitable proceedings to set aside judgments for extrinsic fraud. 49 C.J.S. Judgments § 289, p. 533; Evans v. Buente, Mo., 284 S.W.2d 543; Whitledge v. Anderson Air Activities, Inc., Mo., 276 S.W.2d 114; Askew v. Brown, Mo.App., 450 S.W.2d 446; Linneman v. Whitley, Mo.App., 402 S.W.2d 76; Stieferman v. Stieferman, Mo.App., 219 S.W.2d 864; Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672. These conditions apply also with respect to a motion to set aside a judgment for irregularities, which is the type of motion here involved. Rubbelke v. Aebli, Mo., 340 S.W.2d 747; 46 Am.Jur., Judgments, § 751, p. 911. In the present case the Bishop partners have complied with neither of the conditions mentioned.
With respect to the requirement that the movants be free from negligence, the Bishop partners have wholly failed to explain or justify their failure to file any response to the creditors' answer and cross-claim. When that cross-claim was filed, they were called upon to respond thereto. Their failure to do so admitted the allegations of the cross-claim. Duke, Lennon & Co. v. Duke & Woods, 93 Mo.App. 244, l.c. 251, cited with approval in Hyer v. Baker, Mo. banc, 130 S.W.2d 516, l.c. 517; 49 C.J.S. Judgments § 201(b), p. 357.
The partnership creditors relied upon those admissions in filing their motion for summary judgment, the default being specifically set out in paragraph 1(d) of the motion. That default also constitutes sufficient reason for the creditors not to serve notice of their motion upon the defaulting partners. Rule 43.01(a) V.A.M.R.
The Bishop partners have suggested no excuse or justification in their briefs or at oral argument before this Court for their failure to respond to the creditors' cross-claim. That unexcused failure directly contributed to the entry of judgment against them and constitutes a bar to the quasi-equitable relief requested.
Even more important than the matter of unexcused negligence on the part of the movants, is their failure to make any showing of a meritorious defense to the various claims asserted by their creditors. It would be a useless and futile thing to set aside a judgment if the movants do not in fact have any meritorious defense to urge upon retrial. It is for this reason that the cases in Missouri and elsewhere hold uniformly that a judgment will not be set aside unless a showing of a meritorious defense is made at the onset in connection with the motion to set aside.
The grounds of the motion here to set aside for irregularity consist of the...
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...to file any cross claims against Corley, arising out of the transaction or occurrence of the interpleader action. Tillman v. Deese, 488 S.W.2d 206, 210-11 (Mo.App.1972). It is clear that such cross claims are merely permissive rather than compulsory. See Brown, 637 S.W.2d at 148; Augustin, ......
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