Toler v. Coover

• Citation: 71 S.W.2d 1067,335 Mo. 113
• Decision Date: 17 May 1934
• Docket Number: 31609
• Parties: W. W. Toler v. Frank W. Coover and Margaret B. Coover, Appellants
• Court: United States State Supreme Court of Missouri

71 S.W.2d 1067

335 Mo. 113

W. W. Toler v. Frank W. Coover and Margaret B. Coover, Appellants

No. 31609

Supreme Court of Missouri

May 17, 1934

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed.

Goodwin Creason for appellants.

(1) In Abernathy v. Mo. Pac. Railroad Co., 287 Mo. 30, 228 S.W. 487, this court said: "It is not necessary to cite authorities on the proposition that a judgment void on its face binds no one and may be collaterally attacked whenever and wherever it comes in the way." A void judgment or order of the trial court may be collaterally attacked. Yawitz v. Hopkins, 174 P. 250, 70 Okla. 158. A judgment void on its face may be attacked in any court. Aleman v. Gonzales, 246 S.W. 726; Picardo v Peck, 164 P. 65; Park v. Gibson, 268 Mo. 403. (2) Since the Kansas proceeding and judgments were not in conformity with either the common law, as construed by the Missouri decisions, nor authorized by any Missouri statute it follows that, if proper, it was authorized by some Kansas statute which, with the Kansas decisions construing same, must be pleaded in order to state a cause of action. Schroeder v. Edwards, 267 Mo. 480; Smith v. Trimble-Compton Produce Co., 9 S.W.2d 865. (3) Even if the Kansas judgment were authorized by the common law, it would be necessary to plead the Kansas Constitution, statutes and decisions showing, if at all, how far that State had adopted the common law, since it was carved out of the Louisiana Purchase, from the territory governed by the Roman Civil Law. Musser v. Musser, 281 Mo. 649, 221 S.W. 50; Clark v. Barnes, 58 Mo.App. 668. (4) The Kansas judgment on its face is void. It cannot be corrected "to render judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the judge intended to render." Burnside v. Wand, 170 Mo. 543; Ross v. Ross, 83 Mo. 100; Bank v. Allen, 68 Mo. 474; State v. Joffers, 64 Mo. 376; Belkin v. Rhodes, 76 Mo. 652; Wooldridge v. Quinn, 70 Mo. 371; Campbell v. Daugherty, 71 Mo. 599; Railroad v. Holshlag, 144 Mo. 256; Young v. Young, 165 Mo. 624.

Beardsley & Beardsley, J. John Gillis and Henry D. Green for respondent.

This suit being one for judgment in the State of Missouri for a balance of money due on judgment rendered by a court of general jurisdiction in the State of Kansas, there being no allegation of fraud, the only question involved therefore is whether it is sufficient to plead only the transcript of said judgment, duly authenticated under and in accordance with the Act of Congress, known, termed and designated as "Full Faith and Credit Act." Sec. 1, Art. IV, Const. of United States; Act of Congress of United States, May 26, 1790; Sec. 1700, R. S. 1929; Coy v. Railroad Co., 186 Mo.App. 420; Western Assur. Co. v. Walden, 238 Mo. 61, 141 S.W. 595; Emerson-Brantingham Implement Co. v. Montgomery, 222 Mo.App. 12, 300 S.W. 538; Wilson v. Jackson, 10 Mo. 334; Williams v. Williams, 53 Mo.App. 624; Seymour v. Newman, 77 Mo.App. 582; Howard v. Strode, 242 Mo. 226; Lieber v. Lieber, 239 Mo. 1; Lewis v. Stickey Cigar Co., 209 S.W. 134; Blair v. Caldwell, 3 Mo. 353; McQueen v. Farrow, 4 Mo. 212; Leon-Kahn v. Mercantile Town Mutual Ins. Co., 150 Mo.App. 402; Tootle v. Buckingham, 190 Mo. 196; Tornquist v. Johnson, 13 P.2d 405; Stoer v. Ocklawaha River Farms Co., 138 So. 270; Smith v. Kander, 58 Mo.App. 61; Kincaid v. Storz, 52 Mo.App. 564; 34 C. J. 1104, 1109, 1111, 1112, 1117, 1122, 1123, 1124; Randall v. Snyder, 214 Mo. 23; Birney v. Birney, 161 A. 50, 111 N.J.Eq. 37; Coady v. Legg, 12 P.2d 969; Delanoy v. Delanoy, 13 P.2d 719.

OPINION

Tipton, J.

This is an appeal from a judgment rendered in the Circuit Court of Jackson County, Missouri, wherein the respondent obtained a judgment against the appellants in the sum of $ 7547.26.

Respondent's petition alleged that he had instituted a cause of action in a District Court of Leavenworth County, Kansas, against the appellants on several promissory notes secured by mortgages on real estate located in that county; that that court was a court of general jurisdiction; that it had jurisdiction of the persons of the appellants and of the subject matter of that action; that the appellants were personally served and appeared by their duly authorized attorney; that judgment was rendered by that court in favor of the respondent and against the appellants in the sum of $ 14,274 with interest from March 9, 1928, at the rate of ten per cent per annum.

The judgment provided that it was a first lien upon certain described real estate situated in that county; that it authorized that this real estate be sold by the sheriff of that county; that the proceeds thereof be applied in satisfaction of judgment; and that the appellants have six months to redeem this real estate. The petition further alleged that the property was sold by the sheriff for the sum of $ 9500 and after paying the court costs, left the sum of $ 8757.73; that the judgment was credited with this amount, leaving a balance of $ 5881.05. The petition further alleged that there was no appeal taken from this judgment and six months had elapsed since the sale of the real estate by the sheriff and it had not been redeemed. The appellants' answer was a general denial.

The case was tried before the judge without the aid of a jury. At the trial a duly certified copy of the judgment obtained in the District Court of Leavenworth County, Kansas, and the subsequent proceedings showing this credit on this judgment were admitted in evidence. Judgment in the case at bar as above stated was in favor of the respondent. Other essential facts will be stated in the course of this opinion.

The only question in the case at bar is whether the respondent's petition is sufficient to sustain the judgment of the trial court. At the beginning of the trial the appellants objected "to the introduction of any evidence in the case for the reason that the petition did not state a cause of action." As far as this record shows this is the only attack made upon the petition. We have recently ruled that such an objection serves "no other purpose than that of incumbering the record and consuming the time of the court." Such an objection serves no purpose in any case. [Gridstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702.] Under this state of the record we must treat the petition as sufficient, unless the petition is so fatally defective that a judgment rendered thereon cannot be sustained. [Grove v. Kansas City, 75 Mo. 672; Roberts v. Walker, 82 Mo. 200; and Myers v. Adler, 176 S.W. 538, 188 Mo.App. 607.]

The appellants first attack the respondent's petition in this case because the proceedings in the District Court of Kansas "were not set forth and pleaded in plaintiff's petition herein, as required by Section 1 of Article 4 of the Constitution of the United States and the Act of Congress of May 26, 1790, known as the "Full Faith and Credit Act." The petition in the case at bar pleaded the judgment of the District Court of Kansas, but did not plead the petition, the answer and the reply in that case. If we understand the appellants correctly they contend that the respondent should have pleaded the petition, answer and reply and his failure to do so, makes this petition fatally defective.

In the case of Lewis v. Stickney Cigar Co., 209 S.W. 134, the Saint Louis Court of Appeals said:

"We have set out the only objection made by defendant to the introduction of the judgment as so certified. While it was held in Crone v. Dawson, 19 Mo.App. 214, as also in some other cases following that decision, that the whole record is required to be certified, later cases hold that this is unnecessary. As see Howard v. Strode, 242 Mo. 410, 148 S.W. 792, Ann. Cas. 1913C, 1057, and also Western Assurance Co. v. Walden, 238 Mo. 49, l. c. 61, 141 S.W. 595, which hold that transcript of the judgment, properly certified, is all that is necessary to make out a prima facie case."

In the case of Howard v. Strode, 242 Mo. 210, l. c. 226, 146 S.W. 792, we said:

"Concerning the objections that the decree fails to show due service, and is also incomplete, absent the entire record, the decree states in effect that legal service was had by publication. This makes a prima facie case of due and legal service. It must be presumed that the court proceeded in due course, and by right, upon a sufficient record. In the recent case of Lieber v. Lieber, 239 Mo. 1, we approve this from 13 Am. & Eng. Ency. Law (2 Ed.), p. 995: 'Where reliance is placed on a foreign judgment rendered by a court of record and of general jurisdiction the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly.'"

In the case of Western Assurance Company v. Walden, 238 Mo. 49, l. c. 61, 141 S.W. 595, we said:

"The record in this case discloses the facts that said judgment and transcript were duly authenticated according to the Act of Congress governing such matters; also shows that the Circuit Court of Cook County, Illinois, is a court of record and has a judge presiding, a clerk attending upon the same, as well as a seal of court. Upon that state of facts the law presumes that such a court is a court of general jurisdiction, and that it had jurisdiction of the subject-matter of the action pending herein, and of the parties thereto; and, in the absence of proof to the contrary, such presumption is conclusive. (Citing cases.)

"Section 1 of Article IV, of the Constitution of the United States provides that 'full faith and credit shall be given in every state to the public acts, records and judicial proceedings of every other state.' Full faith and credit cannot be given...