Vandeventer Trust Co. v. Western Stoneware Co.

• Decision Date: 06 March 1917
• Docket Number: No. 14501.,14501.
• Citation: 197 Mo. App. 132,193 S.W. 995
• Parties: VANDEVENTER TRUST CO. v. WESTERN STONEWARE CO.
• Court: Missouri Court of Appeals

193 S.W. 995

197 Mo. App. 132

VANDEVENTER TRUST CO. v. WESTERN STONEWARE CO.

No. 14501.

St. Louis Court of Appeals. Missouri.

Argued and Submitted February 8, 1917.

Opinion Filed March 6, 1917.

On Motion for Rehearing, April 18, 1917.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Suit for injunction by the Vandeventer Trust Company against the Western Stoneware Company. From a judgment dissolving a temporary injunction and dismissing the action, plaintiff appeals. Affirmed.

Bishop & Cobbs, and Marshall & Henderson, all of St. Louis, and Hostetter & Haley, of Bowling Green, for appellant. J. W. Matson, of Louisiana, Mo., and J. S. Fitzgerrell, of Bowling Green, for respondent.

REYNOLDS, P. J.

This is a suit in equity to restrain the enforcement of a judgment.

The Western Stoneware Company, defendant and respondent here, having recovered a judgment against the Pike County Mineral Springs Company, proceeded against the Vandeventer Trust Company, plaintiff and appellant here, as garnishee in the circuit court of Pike County and there recovered a judgment against the garnishee for the sum of $419.50 debt and $13.50 costs. From this judgment the garnishee appealed to our court and the judgment of the circuit court was affirmed. See Western Stoneware Company v. Pike County Mineral Springs Company, defendant, Vandeventer Trust Company, Garnishee, 172 Mo. App. 696, 155 S. W. 1083. Afterwards, the Vandeventer Trust Company, hereafter referred to as the Trust Company, commenced this action in the circuit court of Pike County against the Western Stoneware Company, hereafter referred to as the Stoneware Company, seeking to have that judgment set aside, annulled and vacated and to perpetually enjoin the Stoneware Company from attempting in any manner to enforce the judgment, praying also for a temporary injunction restraining the Stoneware Company from attempting to enforce the judgment by execution or otherwise pending the determination of the cause.

The petition in the case, setting out the obtaining of the judgment, charges that it was obtained by fraud practiced upon the court and upon the plaintiff and its attorney, the fraud charged as having been practiced upon the court being that defendant, with the evidence in its possession and with the knowledge that plaintiff was only indebted to the Pike County Mineral Springs Company, hereafter referred to as the Mineral Springs Company, in the sum of sixty cents, and its attorney having in his possession a statement from plaintiff here, showing the debits and credits of the account as between the Trust Company and the Mineral Springs Company, which account had been furnished to that attorney at his request, had on the trial of the garnishment, having in its possession an account furnished it by plaintiff, had exhibited to the court only one side of the account, which was on one page of the account, showing the credits, but had suppressed and concealed from the court the other page, which showed the debits or amounts drawn out from the Trust Company by checks of the Mineral Springs Company; and that in violation of an agreement between counsel for the Stoneware Company, defendant, and counsel for the Trust Company, had proceeded with the trial of the garnishment proceeding in the absence of any representative or attorney for the Trust Company. This is a summary of the petition in this case, which sets out the facts relied upon by plaintiff very minutely.

The answer specifically denies all the charges of fraud, concealment or misrepresentation and denies any of the agreements alleged to have been made between counsel for the Trust Company and for the Stoneware Company.

A temporary injunction was issued and the cause coming on for hearing, the court, at the conclusion of the testimony, rendered judgment dissolving the injunction and dismissing plaintiff's action. From this plaintiff has duly perfected its appeal to our court.

All of the proceedings connected with the rendering of judgment against the garnishee, the judgment in that case, the mandate and decision of our court when the cause was appealed to our court, were in evidence at the trial of this case. The plaintiff also introduced the testimony of the attorney who had represented the Trust Company in the garnishment proceedings, taken in the present trial by way of deposition. That attorney deposed, in effect, that he had had an agreement with the attorney for the Stoneware Company, under which he had furnished him a statement of the account of the Mineral Springs Company with the Trust Company, showing the debits and credits in detail and showing only sixty cents as due by the Trust Company to the Mineral Springs Company; that he had met that attorney in St. Louis concerning the garnishment matter; that at that interview he had asked the attorney of the Stoneware Company if he had seen the answer which the garnishee had put in that case, denying any indebtedness of the Trust Company to the Mineral Springs Company in excess of sixty cents; that that attorney said he had; that the attorney for the Trust Company then asked him if he had filed a denial to that answer or intended to file one, and that the attorney for the Stoneware Company answered, "No;" that he (that attorney) was satisfied that that was a correct statement of the balance; that he wanted to get a copy of the ledger account of the Trust Company with the Mineral Springs Company as he believed that the officers of the Mineral Springs Company had been guilty of misappropriation of the funds of that company and were defeating its creditors; that the attorney for the Trust Company said that if that was the purpose for which a statement was desired, he would arrange with the Trust Company to furnish that information; that the attorney for the Trust Company further said, on that occasion, to the attorney for the Stoneware Company, that he wanted the latter to let him know if any papers, such as pleadings or motions, which he might think necessary to file in the case, were filed, and to let him have a copy of them; that the attorney for defendant said he would do so and keep him informed on the case as it went along, and further told the attorney for the Trust Company that the case was set sometime in June but had been continued until the next term of the court to be held in October, and that he would keep the attorney for the Trust Company informed as to the setting of the case; that it was under this arrangement he had furnished the attorney for the defendant with the statement from the Trust Company; that this occurred sometime in June, 1911; that he was out of the city sometime after that and knew nothing more of the case and was paying no attention to it until he received a letter from the clerk of the circuit court of Pike County, of date August 2nd, advising him by direction of the judge of the court, that on the first of August the case against the Trust Company as garnishee had come on for hearing but the garnishee making default, the court had found in favor of the plaintiff on its denial of the garnishee's answers, found the garnishee indebted to the Mineral Springs Company in the sum of $841.45 at the date of the service of the garnishment and ordered the garnishee to pay plaintiff in that action, defendant here, the sum of $516 on or before August 4th, 1911; that thereupon he had taken steps in connection with a local attorney to set aside the judgment; that he went from St. Louis to Bowling Green and participated in the hearing of the motion to set aside the judgment, which on being overruled, was appealed to the St. Louis Court of Appeals, that being the case heretofore referred to as decided by our court.

The attorney for the Stoneware Company, testifying before the court in the instant case, specifically denied having had any such agreement or understanding, or having made any of the promises set out by the attorney for the Trust Company in his deposition, he testifying that he had met the attorney for the Trust Company in St. Louis only once and that all which then took place between them was that he reminded the attorney for the Trust Company that he had agreed to send him a copy of the account; that the attorney telephoned to the Trust Company and told him (the attorney for the Stoneware Company), that if he would wait he would let him have the statement of account that day, but that he (attorney for the Stoneware Company) told the attorney for the Trust Company that he wanted to take a train home that afternoon and could not wait as he was in a hurry to catch the train and that that was all that was said between them; that he was with the attorney a very short time and left for home that afternoon.

The motion to set aside the finding of the court touching the indebtedness of the Trust Company to the Mineral Springs Company and which will be found in the report of the case when before us (see 172 Mo. App. loc. cit. 701, 155 S. W. 1083), and which was filed at the same term (July term) of the court at which that judgment against the Trust Company, as garnishee, had been rendered, was in evidence at this trial. As will be noticed, it assigns two grounds why the finding of the court as to the indebtedness should be set aside: First, that the denial of the garnishee's answer was not filed until July 17th, 1911, and the garnishee was without knowledge or information that its answer had been denied until after the trial of the garnishment proceedings and the order entered against it on the first day of August; and, second, because the court was without jurisdiction over the garnishee or the subject-matter of the garnishment for reasons therein stated.

This motion was heard before the court on August 4th, 1911.

It was in evidence at the hearing of the present case that in passing on the motion to set aside the finding and judgment in the garnishment proceeding the Honorable B. H. Dyer, who was then the judge...