Tootle v. Buckingham
| Decision Date | 15 June 1905 |
| Citation | 88 S.W. 619,190 Mo. 183 |
| Parties | TOOTLE et al. v. BUCKINGHAM et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.
Affirmed.
Johnson Rush & Stringfellow for appellants.
(1) Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. U. S. Constitution, art. 4, sec. 1; Hanley v Donaghue, 116 U.S. 1; Huntington v. Attrill, 146 U.S. 657; Harbin v. Chiles, 20 Mo. 314; Crim v. Crim, 162 Mo. 544. (2) It is proper for a trial court to render judgment on the opening statements of counsel where such statements contain admissions warranting such action. Oscanyon v. Winchester Arms Co., 103 U.S. 263; Clews v. Bank, 105 N.Y. 398; Denenfield v Bowman, 58 N.Y.S. 111; Thompson on Trials, sec. 269; Abbott's Trial Brief, p. 40. This is the prevailing practice in the State of Kansas. Lindley v. Railroad, 47 Kan. 432; Railroad v. Hartman, 40 P. 109. It is also the practice in this State. Pratt v. Conway, 148 Mo. 299; St. Louis v. Babcock, 156 Mo. 154. Even if a party was so unscrupulous as to be willing, he ought not to be allowed to swear around an admission made in an opening statement. Rice on Evid., p. 128. The proceeding in the Kansas court was a trial on the merits, "a judicial examination of the issues," since it was a decision of the issues based upon admissions made in open court by the counsel of the plaintiff in that case, and this was admitted by the filing of a motion for a new trial in that case. Crossland v. Admire, 118 Mo. 87. (3) The suit was properly dismissed as to defendant Buckingham. Service of summons outside of the State in divorce and other proceedings in which such service is provided by our statutes is equivalent to service by publication. Orear v. Clough, 52 Mo. 55. A personal judgment cannot be rendered on such service. Hendrix v. Railroad, 77 S.W. 495; Wilson v. Railroad, 108 Mo. 596; Hamill v. Talbott, 81 Mo.App. 214. In this case there is no attachment, no lien of any kind on property involved, no receiver, no money paid into court, no property of any kind was at the time of the trial nor had ever been in the custody or control of the court, hence there was no foundation for a judgment in rem or for service cutside the State. The jurisdiction of the court to inquire into and determine the obligations of a non-resident so served is only incidental to its jurisdiction over the property. Some property must be brought under the control of the court by seizure or some equivalent action. Pennoyer v. Neff, 95 U.S. 714; Cooper v. Reynolds, 10 Wall. 308; Hawes on Jurisd., sec. 233. Without some property in the custody of the court the court is without jurisdiction, and a judgment founded on such service is void. Smith v. McCutchen, 38 Mo. 415; Ellison v. Martin, 53 Mo. 575; Latimer v. Railroad, 43 Mo. 105; Byer v. Trust Co., 63 Mo.App. 521; Adams v. Hecksher, 80 F. 742; Fisher v. Evans, 25 Mo.App. 582. Defendant Buckingham having been the sole defendant in the Kansas suit, even if it were otherwise possible, a suit here could not affect the binding force or the rights acquired under the judgment in that suit without having him in court. After publication a petition not coming within the statute allowing substituted service on a non-resident cannot even be so amended as to give the court jurisdiction. Janney v. Spedden, 38 Mo. 395; Adams v. Hecksher, 80 F. 742. (4) In order to be valid, a mortgage, where possession is not delivered, must describe the property conveyed so that a stranger with the mortgage in his hand can pick it out. Evans-Snyder-Buell Co. v. Turner, 143 Mo. 638; Stonebraker v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo.App. 192; Jones, Chat. Mtgs., secs. 54, 55; Chandler v. West, 37 Mo.App. 635; 5 Am. and Eng. Ency. Law, 956, 962. When stock is described as located on a particular farm or at a particular place, they must be the only stock at that place to which the description would apply. Lafayette County Bank v. Metcalf, 29 Mo.App. 394. If the animals mortgaged are mixed in with a number of others of a similar kind, the mortgage is void. Dawson v. Cross, 88 Mo.App. 296. The fact of such mixing may be shown by the evidence outside of the mortgage. Estes v. Springer, 47 Mo.App. 104; Bank v. Shackelford, 67 Mo.App. 480. Although the mortgage may be good between the parties to it, the location being made a part of the description, the mortgage is made inoperative as to the parties to this controversy by the fact that were other cattle of like description at the same place. Stonebraker v. Ford, 81 Mo. 532; Jones Bros. Live Stock Com. Co. v. Long, 90 Mo.App. 8; Young v. Bank, 97 Mo.App. 582; Mackey v. Jenkins, 62 Mo.App. 618; North Inv. & Corp. Co. v. Davis, 76 Mo.App. 512. (5) The judgment in the Kansas suit is conclusive on plaintiffs.
R. A. Brown and Scarritt, Griffith & Jones for respondents.
(1) Equity has jurisdiction. (a) The action is to follow up and reclaim a trust fund. (b) To avoid a multiplicity of suits at law. (c) All the defendants liable at law are insolvent. 2 Story, Eq. Jur., sec. 899; Johnson v. Huber (Wis.), 82 N.W. 138; Moore v. Jaeger, 19 Cen. Dig. 138; Burney v. Stevenson, 15 Am. Rep. 621; Davis v. Mugan, 56 Mo.App. 311; Snorgrass v. Moore, 30 Mo.App. 235; Evans v. Railroad, 64 Mo. 453; Parks v. Bank, 31 Mo.App. 12; Biddle v. Ramsey, 52 Mo. 153. (2) The rights of the plaintiffs in this case were not finally adjudicated and disposed of in the trial and judgment in the replevin suit in the State of Kansas. (a) The plaintiffs in this case were not parties to the replevin suit in Kansas. Their application to be made such was summarily overruled by the Kansas court. (b) There was no trial of the merits of the replevin suit in the Kansas court, the judgment there being founded upon the fact that the J. C. Bohart Commission Company, the plaintiff in that case, was not the real party in interest therein. Snorgrass v. Moore, supra; Bell v. Hoagland, 15 Mo. 360; Hickerson v. City, 58 Mo. 61; Spradling v. Conway, 51 Mo. 51; Garrett v. Greenwell, 90 Mo. 120; Baldwin v. Davidson, 139 Mo. 118. (3) The testimony shows that the Cooke mortgages were in full force and effect and were sold by Cooke to the plaintiffs for a sufficient and valuable consideration. (4) The effect of the Kansas judgment is to require the plaintiffs to pay again for their own cattle by reason of the indemnity given to the sureties upon the replevin bond in that case. (5) The merits of the replevin suit were not tried in the Kansas court. The appealing defendants had knowledge of the plaintiff's claims. There was no consideration given for the assignment of the Kansas judgment. (6) The contention that the mislocation of the cattle in the descriptions in the Bohart mortgages renders them invalid is not tenable. The cattle were otherwise sufficiently described and the mortgages were filed in the county where the mortgagor resided and the cattle were located as required by the laws of Kansas. A mistake in the description of the mortgaged cattle regarding their location does not invalidate the mortgage. Adams v. Hill, 10 Kan. 627; Estes v. Springer, 47 Mo.App. 99; Jones v. Workman (Wis.), 27 N.W. 158; Stonebraker v. Ford, 81 Mo. 532. (7) It is clearly shown by the testimony that the 243 head of cattle covered by the plaintiff's mortgages were not so mixed or commingled with other cattle of the same description, by Curtis, the mortgagee, as to destroy their identity, but even if such were the case it would not avail the appealing defendants anything, as subsequent grantees or mortgagees. Adams v. Wilder, 107 Mass. 123; Hoe v. Wadsworth, 59 N.H. 402; Hesseltine v. Stockwell, 30 Me. 237; Bryant v. Ware, 30 Me. 295; Jones on Chat. Mort., sec. 481; Willard v. Rice, 11 Metc. 493; Fuller v. Paige, 26 Ill. 358. (8) The appealing defendants do not occupy the position of innocent purchasers or mortgagees. Howard v. Bank, 44 Kan. 551; Burnam & Co. v. Smith, 82 Mo.App. 48. (9) The Cooke mortgages were not discharged or cancelled. Howard v. Bank, supra.
This is a suit in equity, aimed to adjust the claims of the parties in a controversy growing out of certain cattle transactions in Kansas.
The substantial facts stated in the petition are as follows:
The plaintiffs, as partners in November, 1898, acquired by purchase from one of the defendants, the Bohart Commission Company, for a valuable consideration, certain negotiable promissory notes secured by two chattel mortgages covering 243 head of cattle in Kansas, the notes and mortgages were made by one Curtis, who was then the owner of the cattle dated November 5, 1898, and the mortgages were duly registered as required by the laws of Kansas. Afterwards on November 18, 1898, in breach of the condition of the mortgages, Curtis sold and delivered 200 head of the cattle to one Gillett who, without consideration, delivered them to one Buckingham, who removed them to another county in Kansas, to-wit, Wabaunsee county. The plaintiffs, on learning of the breach, delivered the notes and mortgages to the Bohart Company from whom they had purchased them, for the purpose of suit and collection. The Bohart Company went to Kansas and instituted an action of replevin in its own name against Buckingham in Wabaunsee county, based on the mortgages, to recover possession of the 200 head of cattle. The Kansas law required the plaintiff in such suit to give bond with resident security, and to meet this requirement the plaintiffs in this suit, Tootle, Lemon & Co., procured a correspondent of theirs resident in Kansas to become the surety, and agreed to indemnify him in the matter, which was done. Under the writ of replevin the sheriff found and seized...
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