Wonderly v. Lafayette County

• Citation: 150 Mo. 635,51 S.W. 745
• Parties: WONDERLY v. LAFAYETTE COUNTY.
• Decision Date: 23 May 1899
• Court: United States State Supreme Court of Missouri

51 S.W. 745

150 Mo. 635

WONDERLY v. LAFAYETTE COUNTY.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

JUDGMENTS — JURISDICTION OF UNITED STATES COURT — COLLUSIVE ASSIGNMENT — POWER OF STATE COURT — HARMLESS ERROR — LACHES.

1. Where defendant sued on a judgment admits in his answer the rendition of the judgment as alleged, error in admitting an imperfect transcript thereof is harmless.

2. An assignment of a judgment of a United States circuit court is not a judicial proceeding, within Rev. St. 1889, § 4881, giving faith and credit to the judicial proceedings of any court of the United States attested by the clerk thereof, and certified by the judge, and hence is not admissible in evidence, without proper proof of its execution.

3. Error in admitting such proof of the assignment is not cured by the fact that there was other evidence of the assignment, since the other proof alone may or may not have been satisfactory to the trial court.

4. The owner of county bonds, knowing that the state courts had decided that the legislative act under which they were issued was unconstitutional, and the bonds were invalid, and that the federal courts had held the act constitutional and the bonds valid, and knowing that he could not recover on his bonds in the state court, but could in the federal court, and that he could not sue the county in the federal court, because he was a citizen of the state, assigned the bonds to a nonresident for the purpose of conferring jurisdiction on the federal court, and after judgment had it assigned to himself. Held, that this was a fraud on the federal court in procuring the judgment, and the state court in equity would set it aside, notwithstanding the true ownership of

the bonds might have been ascertained in the federal court, if plaintiff had not concealed the true state of affairs to prevent defendant from making that defense.

5. In a suit on such a judgment, the answer alleged that the fraud practiced on the federal court and defendant, to wit, the actual ownership of the bonds, was known only to the owner and his assignee, and was by them concealed, so that defendant did not discover it until after institution of the suit in the state court. Held, that there could be no laches, on the part of defendant, under these circumstances.

Appeal from circuit court, Lafayette county.

Action by Charles P. Wonderly against Lafayette county. There was a judgment for plaintiff, and defendant appeals. Reversed.

This is a suit begun September 18, 1895, in the circuit court of Lafayette county, upon a judgment rendered October 31, 1885, in the circuit court of the United States for the Western division of the Western district of Missouri, in favor of one Francis D. Owings against Lafayette county for $11,791.45, and alleged to have been assigned to the plaintiff, Wonderly. The petition alleges the issuance and service on defendant of the summons, the return of same, and rendition of judgment, and assignment thereof to plaintiff; that the cause of action on which it was founded consisted of bonds and coupons bearing interest at 10 per cent. per annum from maturity. The petition did not state facts showing that the suit in which the judgment was rendered was within the jurisdiction of the federal court, nor did it state that the judgment had not been paid. Defendant, by its amended answer, admitted the rendition of the judgment, and denied the assignment. Then the answer proceeded affirmatively to state a case for equitable cognizance, charging that the judgment was procured by fraud, and praying that it be set aside and annulled. In substance, the charge of fraud was that the bonds and coupons on which the judgment was founded were issued under a certain act of the general assembly of Missouri named, which was in conflict with the constitution of the state, and was therefore invalid, and the bonds and coupons were null and void; that, under the laws then existing, the circuit courts of the United States within this state had jurisdiction of suits involving more than $2,000, wherein a citizen of another state was plaintiff and a citizen of this state defendant; that, prior to the institution of the suit in which the judgment sued on was rendered, the supreme court of this state had in numerous decisions adjudged the act of the legislature mentioned unconstitutional and void, and bonds purporting to be issued thereunder of no force and effect, but that the courts of the United States had taken a contrary view, and had decided that the act was constitutional and valid, and bonds issued under it binding obligations; that, prior to the institution of that suit, the plaintiff in this suit was fully advised of the decisions of the supreme court of this state, and also of those of the United States courts, on that subject, and he knew that, if he sued on those bonds and coupons in a court of this state, the result would be a judgment for defendant, but, if he sued in the federal court, the probability was that the bonds would be held valid, and he would obtain a judgment on them; that, at the time that suit was instituted in the name of Owings, he was not the owner of the bonds or coupons, but the same were the property of the plaintiff in this case, and he and Owings, both knowing how the Missouri courts had held, and also how the federal courts had held, "combined and conspired together for the purpose of wronging, cheating, and defrauding this defendant, and of imposing and perpetrating a fraud upon the jurisdiction of the United States circuit court within and for the Western division of the Western district of the state of Missouri, and, in pursuance of such combination and conspiracy, the said plaintiff and the said Owings falsely and fraudulently pretended the said plaintiff had sold and assigned and transferred to said Owings the aforesaid bonds, and thereupon the said Owings, pretending to be the holder and owner of said bonds, instituted said suit in said United States court"; that all the time the plaintiff was and still is a citizen of Missouri, and Owings was and still is a citizen of Illinois; that the pretended transfer to Owings was to enable the plaintiff in that name to use the United States court to obtain a judgment which he knew he could not obtain in his own name; that defendant had no knowledge or information as to the real ownership of the bonds, or of the facts in regard to the pretended assignment, until November, 1895; that, if defendant had had any knowledge or information of the fraud, it would have made the defense in that court, but that the plaintiff and Owings, knowing that the defendant was ignorant of the real ownership and pretended transfer, kept the facts secret, and defendant was thus prevented from raising the question of jurisdiction in that court; and that defendant had no information or intimation of the real ownership of the bonds, and the fraud that had been practiced, until after the institution of the present suit. There is a prayer asking that the judgment be set aside, etc. Defendant then proceeds, by way of a cross bill, to state the rendition of the same judgment, and that in October, 1895, a writ of scire facias to revive the judgment had issued out of the United States court in the name of Owings, to the use of plaintiff, against defendant. Then the same facts, to show that the judgment was obtained by fraud, as above stated, are pleaded again, and the cross bill concludes with a prayer for an injunction to restrain the plaintiff from further prosecuting the writ until the final determination of this suit. On motion of the plaintiff, the court struck out all of defendant's answer except the first clause, which admitted the rendition of the judgment and denied the assignment, to which the defendant duly excepted. The cause was tried by the court without a jury. On the trial the plaintiff introduced in evidence a document marked "Transcript of Judgment," which purports to set out a copy of the petition, summons, and return, showing service on defendant and the judgment in question, and a certificate purporting to be signed by the clerk, to the effect that on September 12, 1891, there was presented an assignment of the judgment "duly acknowledged to Charles P. Wonderly, of St. Louis, Mo., dated November 20, 1885." To the whole document there is the attestation of the clerk, duly certified by the judge, that it is a "true copy of the judgment record in the above-entitled cause." Defendant objected on the ground that the certificate of the clerk was not sufficient, the objection was overruled, and defendant excepted. Then plaintiff offered what purported to be an assignment of the judgment dated November 28, 1885, signed by Francis P. Owings, acknowledged before one William H. Bradley, as clerk of the circuit court of the United States for the Northern district of Illinois. The defendant objected on the ground that the judgment was in the name of Francis D. Owings, and the purported assignment was in the name of Francis P. Owings, and also on the ground that the purported certificate of acknowledgment was not evidence. Objections overruled, and exception taken. Then there was a certificate of the clerk of the court in which the judgment was rendered, to the effect that he had noted the assignment on the margin of the entry of the judgment, "12th Sept., 1891." This was objected to as incompetent, objection overruled, and exception taken. That was all the evidence for plaintiff. Defendant offered evidence tending to prove the facts alleged in that portion of the answer which had been stricken out, but, on objection of plaintiff, it was excluded, and defendant excepted. The court found for plaintiff, and rendered judgment in his favor for $23,928.63. Motions for new trial and in arrest followed, which were overruled, and the cause is here on defendant's appeal.

Wm. Aull, J. M. Lewis, and Elijah Robinson, for appellant. Frederick A. Wind,...