Vandeventer Trust Co. v. Western Stonware Co.
| Decision Date | 06 March 1917 |
| Citation | 193 S.W. 995,197 Mo.App. 132 |
| Parties | VANDEVENTER TRUST COMPANY, Appellant, v. WESTERN STONEWARE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted, February 8, 1917
Opinion on Motion for Rehearing Filed April 18, 1917.
Rehearing Denied 197 Mo.App. 132 at 148.
Appeal from Pike Circuit Court.--Hon. Edgar B. Woolfolk, Judge.
AFFIRMED.
Judgment affirmed.
Bishop and Cobbs, Marshall and Henderson and Hostetter and Haley for appellant.
(1) The decision in the case of Cross v. Gold, 131 Mo. 585 is decisive in favor of the plaintiff herein of the case at bar, and is in many respects on all fours with the case at bar. In that case, as in this, the plaintiff's attorney agreed to notify the defendant's attorneys of the setting of the case and instead of doing so, took judgment against the defendant. The Court of Appeals held this to be a fraud and set aside the judgment. This case is followed in the case of Schuck v. Lawton, 155 S.W. 21. (2) The fraud practiced by the defendant and its attorneys in suppressing material evidence known to them at the trial of the garnishment case is sufficient to cause this court to set aside that judgment. The fraud consisted of Mr. Matson suppressing the debit side of the statement of the account of the Pike county Mineral Springs Company with the Vandeventer Trust Company, from the knowledge of Mr. Cooper, and procuring him to testify that there was a balance of $ 841.45, to the credit of the Mineral Springs Company at the date of the service of the garnishment, and that none of it had been withdrawn, when Mr. Matson knew that it had been withdrawn except 60c and that his company had received $ 200 of it, and in the further suppressing of this fact from the knowledge of the court, for as Judge DYER testified, no such state of affairs was made known to him when he permitted the judgment to be entered, and that he would not have permitted it to be entered if he had known it. (3) It is wholly immaterial whether the checks withdrawing the deposit of the Pike County Mineral Springs Company were signed by Mr. Cooper or not. The checks were drawn and the money was used by the Pike County Mineral Springs Company. The bank book was balanced every month and the cancelled checks were returned to the Mineral Springs Company, and it was the duty of that Company to notify the Trust Company within a reasonable time, of any errors in the balancing of the book and also of any forged checks, if any such there were, or had been paid by the bank, and the Pike County Mineral Springs Company and its creditor, the Western Stoneware Company, which received and was paid the last check drawn on that account, cannot now be heard to say that any of the checks that were paid by the Trust Company and which purported to have been signed by Mr. Cooper were forged checks, for no such complaint was ever made by the Mineral Springs Company to the Trust Company. McKeen v. Bank, 74 Mo.App. 281; Kenneth Investment Co. v. Bank, 103 Mo.App. 613. Where the parties reside in the same town, ten days has been held to be a reasonable time for the depositor to examine the returned or cancelled checks and to notify the bank of any errors in the account or of any alleged forged checks. Kenneth Investment Co. v. Bank, 103 Mo.App. 613; Bank v. Mill Co., 182 F. 1; Rettig v. Bank, 174 Ill.App. 193.
J. W. Matson and J. S. Fitzgerrell for respondent.
(1) The law governing this proceeding can be found principally in the following decisions: Lieber v. Lieber, 239 Mo. 31; Curtis v. Bell, 131 Mo.App. 245; Cross v. Gould, 131 Mo.App. 585; Einstein v. Strother, 182 S.W. 122. (2) The proof clearly shows that Mr. W. N. Cooper's name as treasurer of the Pike County Mineral Springs Company was forged to all the checks cashed by the Vandeventer Trust Company, and that up to the time of the trial of the garnishment proceeding in August, 1911, Mr. Cooper was not aware that any such checks had been signed and cashed, but prior to that time he had requested a statement of the Springs Company's account from the Trust Company, and the Trust Company had not sent the same to him. The proof also shows that the Trust Company had sent statements to somebody without proving who they were sent to, and without proving that it suffered any loss thereby, and the sending of those statements to some such person did not in any way estop the Pike County Mineral Springs Company, through its treasurer, or any of its creditors, from proving that the checks, if any, had been forged. Kenneth Investment Co. v. National Bank of the Republic, 103 Mo.App. 613, 619; McKeen v. The Boatman Bank, 74 Mo.App. 281, 290-291; Wind v. The Fifth Nat'l Bank, 39 Mo.App. 72; Kenneth Investment Co. v. National Bank of the Republic, 96 Mo.App. 125. (3) The proof also clearly shows that if there had been any fraud at all practiced upon the appellant, and the respondent unqualifiedly denies there was any such, then the appellant's attorneys knew of all those alleged facts between the entry of the findings of the circuit court in the garnishment proceeding on August 1st and the final judgment on August 4, and its attorney, Mr. Zeppenfeld, was in the circuit court at that time, and was told by the court to file his motion in the nature of a writ of coram nobis, or a motion to set aside the default findings, and he declined and refused so to do, but they did file two other motions at that term of the court, and it is certainly too late now to come into court and ask to proceed in an equitable proceeding when they could have had the same remedy at that time and arrived at the same result if their evidence justified it in the original garnishment case. Wyman v. Hardwick, 52 Mo.App. 621; Phillips v. Samuel, 76 Mo. 657; Einstein v. Strother, 182 S.W. 122. (4) In all these cases strict proof of fraud, if any, is required of the plaintiff, and the burden is upon the plaintiff to so prove his case, and in this case the appellant has failed to prove any fraud as shown by the evidence. Flood v. Busch, 165 Mo.App. 143, 152. (5) Injunction will not issue in a case of this character unless the plaintiff shows that he had a good defense to the original claim, and in this case all the evidence clearly shows that the appellant is trying to stand behind the cashing of forged checks without even showing who got the benefit thereof, and to whom the money was really paid. In fact, the appellant did not attempt in this case to bring into the court any one to whom it claimed it sent any statements, or to have paid any of those checks to which Mr. Cooper's name had been forged. Sauer v. Kansas City, 69 Mo. 46.
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...
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