Wonderly v. Lafayette County
| Decision Date | 14 June 1899 |
| Citation | 51 S.W. 745,150 Mo. 635 |
| Parties | Wonderly v. Lafayette County, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.
Reversed and remanded.
Wm Aull, J. M. Lewis and Elijah Robinson for appellant.
(1) Plaintiff's petition does not state facts sufficient to constitute a cause of action. It fails to state any facts showing that the United States court, in which judgment in the Owings case was rendered, had any jurisdiction, either of the person of the defendant or the subject-matter of said suit. Nor does it contain any averments which are by law made tantamount to a statement of facts showing jurisdiction. That court, being a court of limited jurisdiction, it was absolutely necessary, either to set forth the facts, or to allege, in compliance with the terms of the statute, that said judgment was duly rendered. (2) The fact that plaintiff was the actual owner of the bonds which are the basis of the judgment in the Owings case, and that he transferred said bonds to Owings to have suit brought on them in the United States court constituted a fraud. Williams v Nottawa, 104 U.S. 209; Farmington v. Pillsbury, 114 U.S. 138; Hartog v. Memory, 116 U.S. 588; Morris v. Gilmer, 129 U.S. 315. (3) Fraud in procuring a judgment at law is always good ground for coming into equity to set aside the judgment. Freeman on Judgments secs. 489 and 491; Fish v. Lane, 2 Hayw. 522; Noyes v. Loeb, 24 La. Ann. 48; Pratt v. Wortham, 5 Mason, 95; Ocean Ins. Co. v. Fields, 2 Story, 59; Reed v. Harvey, 23 Ark. 44. (4) When the facts are known to plaintiff but unknown to defendant, and purposely concealed from defendant by plaintiff, that is sufficient excuse for not setting them up as a defense. Shinkle v. Letcher, 47 Ill. 216; Dunlap v. Cody, 31 Ia. 260; Jackson v. Jackson, 1 John. 424; Peel v. January, 35 Ark. 331; Payne v. O'Shea, 21 Mo. 133; Bresnahan v. Price, 54 Mo. 422. (5) Under our system of practice any facts which would require a court of equity to set aside a judgment, may be set up as a defense in an action on the judgment. Freeman on Jud., sec. 435; Ward v. Quinlivin, 57 Mo. 425.
Frederick A. Wind for respondent.
(1) The petition states a cause of action. (a) In pleading the judgment of a United States court it is not necessary to plead facts showing jurisdiction. Reed v. Vaughan, 15 Mo. 137. (b) Any formal defect in the petition is waived by pleading over after demurrer was overruled. (c) Any defective averment, concerning the judgment sued on, is made good by the answer, which admits rendition of the judgment. (2) The Federal court had jurisdiction to hear and determine the cause of Owings v. Lafayette county; even if it be admitted that Owings was not the absolute owner of the bonds, but held them for benefit of Wonderly. (a) The petition averred that Owings was the owner for value of the bonds, and that he was a citizen of Illinois, and defendant a citizen of Missouri; and this averment gave the court power to determine the facts of ownership and citizenship, which the court is conclusively presumed to have done, and its judgment as to these facts can never be contradicted. Erwin v. Lowry, 7 How. 172; Hartog v. Memory, 116 U.S. 588; Railroad v. Ia. Homestead Co., 123 U.S. 552; Mattocks v. Baker, 2 F. 455; Holmes v. Railroad, 9 F. 237; Nichols v. Stevens, 123 Mo. 115; Reed v. Vaughan, 15 Mo. 137. (b) Even if the petition contained no averment as to citizenship of the parties, the judgment would be valid. McCormick v. Sullivant, 10 Wheat. 199; Railroad v. Ia. Homestead Co., 122 U.S. 559; Dowell v. Applegate, 152 U.S. 335; Skirving v. Ins. Co., 59 F. 742; McClanahan v. West, 100 Mo. 320. (c) And although the record showed that all the parties were citizens of the same State, still the judgment rendered would be valid. Railroad v. Homestead Co., 123 U.S. 552; Evers v. Watson, 156 U.S. 533. (d) And it is none the less conclusive because the judgment was by default. Harshman v. Knox Co., 122 U.S. 306; Nichols v. Stevens, 123 Mo. 96. (e) A transfer made for the purpose of vesting title in a non-resident, and thereby giving a Federal court jurisdiction, was not considered a fraud upon the defendant or upon the Federal court, and did not prevent the Federal court from acquiring and maintaining jurisdiction. McDonald v. Smalley, 26 U.S. 620; Barney v. Baltimore, 73 U.S. 280: Hartog v. Memory, 116 Mo. 588; Skillern v. May, 6 Cranch. 267; Railroad v. Ia. Homestead Co., 123 U.S. 559; Evers v. Watson, 156 U.S. 533. (f) In an action on a judgment, fraud on the jurisdiction is no answer if service was had on defendant. Fraud in assignment can not be pleaded as defense. Christmas v. Russell, 5 Wall. 290; Maxwell v. Stewart, 89 U.S. 77. (g) The failure to plead was an admission of the truth of the averments, and was a waiver of any fraud that might have been practiced upon the court and the defendant, by the assignment of the cause of action. Mattocks v. Baker, 2 F. 455; Marsh's Admr. v. Bash, 41 Mo. 493; Duncan v. Gibson, 45 Mo. 352. (3) Equity will never interfere with a judgment unless it was procured by fraud; i. e., unless there was a fraud practiced in the proceeding which resulted in rendition of the judgment. Bates v. Hamilton, 144 Mo. 11; Hamilton v. McLean, 139 Mo. 678; Nelson v. Barnett, 123 Mo. 570; Nichols v. Stevens, 123 Mo. 115; Richardson v. Stowe, 102 Mo. 33; Irvine v. Leyh, 102 Mo. 206; Smith v. Sims, 77 Mo. 272; Payne v. O'Shea, 84 Mo. 135; Murphy v. DeFrance, 101 Mo. 155; Skirving v. Ins. Co., 59 F. 742. (a) The fraud can not consist in an untrue averment in the statement of the cause of action, for if the defendant was served with process he had an opportunity to deny it and defeat recovery, and the judgment is conclusive of every fact averred or necessary to a recovery. Nichols v. Stevens, 123 Mo. 115; Richardson v. Stowe, 102 Mo. 33; Irvine v. Lehy, 102 Mo. 206; s. c. 124 Mo. 365; Payne v. O'Shea, 84 Mo. 135; High on Injunctions, sec. 180; Smith v. Sims, 77 Mo. 270. (b) Defendant having been served with summons, can defend on ground of fraud in procurement of the judgment only in the court which rendered judgment. Mark v. Fore, 51 Mo. 70; DeGraw v. DeGraw, 7 Mo.App. 128; Callahan v. Griswold, 9 Mo. 792. (4) The answer does not show diligence in discovering the alleged fraudulent act; it does show laches. The petition avers the assignment of the judgment of record over nine years ago, which the answer admits, but the answer does not show any reason why defendant did not originally investigate the fact of ownership, nor why it has not in the time since judgment was assigned inquired into original ownership of the bonds. Defendant could have taken depositions of Wonderly and Owings before and since rendition of judgment, as it has since institution of the suit. High on Investigations (2 Ed.), secs. 190 and 191; Wilder v. Lee, 64 N.C. 50; Lansing v. Eddy, 1 Johns. Ch. 49; 1 Black on Judgments, sec. 365; Nevins v. McKee, 61 Tex. 412; Smith v. Sims, 77 Mo. 274.
This is a suit begun 18th September, 1895, in the circuit court of Lafayette county upon a judgment rendered 31st of October, 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 found 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...
To continue reading
Request your trial