Wright v. Salisbury

• Decision Date: 31 March 1870
• Citation: 46 Mo. 26
• Parties: EDMUND WRIGHT, Appellant, v. THOMAS L. SALISBURY, Respondent.
• Court: Missouri Supreme Court

46 Mo. 26

EDMUND WRIGHT, Appellant,

v.THOMAS L. SALISBURY, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Peacock & Cornwell, for appellant.

M. L. Gray, for respondent, cited Cadwallader v. Atchison, 1 Mo. 659; Risher v. Roush, 2 Mo. 95; Yantis v. Burdett, 3 Mo. 457; 15 Mo. 95; George v. Tutt, 36 Mo. 141; Adams' Eq. 196-7, note 1; Vastine v. Bast, 41 Mo. 493; 10 Mo. 100; 6 Mo. 254 · 8 Mo. 679; 24 Mo. 40; Bosbyshell v. Summers et al.,40 Mo. 172; Normanser v. Hitchcock, 40 Mo. 178, 181; 7 Mo. 6, 25; 8 Mo. 686; 10 Mo. 392; 11 Mo. 192; 13 Mo. 582; 18 Mo. 466; 27 Mo. 444.

BLISS, Judge, delivered the opinion of the court.

In 1858 the plaintiff gave West and Holton his promissory note for $2,000, and, by sundry indorsements, it came through Jane West, wife of one of the payees, into the hands of the defendant, who recovered judgment upon it against the maker. The present action is brought to COMPEL AND SET OFF a claim against West, the husband, and to enjoin the collection of so much of the judgment, claiming that the note was prosecuted for his use; that it was fraudulently placed in the hands of said defendant to be collected in his own name, for the purpose of preventing the application of the set-off of some $1,100, paid by the plaintiff upon an order of West, and by its terms agreed to be supplied upon said note, and also claiming other equities. The defense in part is res adjudicata, and upon that ground the Circuit Court dissolved the injunction and dismissed the petition.

It appears that when the original suit was brought upon the note, the facts embraced in this petition were set forth in the answer in order to constitute an equitable set-off to a portion of the claim; but, when the case was called for trial the defendan (present plaintiff) did not appear, his defense was not considered, and judgment was rendered upon the note. In giving the reason for his non-appearance, the present petition states that he relied entirely upon his attorney to look after the case, but that the attorney had, without his knowledge, left the State. Under these circumstances, has the plaintiff a right again to come into court and ask its protection? There is no res adjudicata. This equitable set-off has never been passed upon. But having had the opportunity of prosecuting it, and having actually set it out on paper, shall he now be permitted to prosecute it by petition?

This court has frequently held that equity will not interfere to grant a new trial, and let in a defense, where the failure to make it was the result of neglect by the party or his attorney. (Cadwallader v. Atchison, 1 Mo. 659; Risher v. Roush, 2 Mo. 95; Yantis v. Burdett, 3 Mo. 457; George v. Tutt, 36 Mo. 141) Nor is it error for the court to overrule a motion for a new trial on account of the absence of the attorney (Stout v. Calver, 6 Mo. 254; Steigers v. Darby, 8 Mo. 679; Normanser v. Hitchcock, 40 Mo. 178); though it might be supposed the court, in its discretion, would ordinarily grant the motion where the excuse for the absence was reasonable, and evident injustice had been the result.

The plaintiff not having set forth in his petition any excuse, as fraud or mistake, for not having prosecuted his set-off in the former suit, that would of itself entitle him to relief, we must treat his case as if no such defense had been attempted. In that case could the matter be prosecuted as an independent claim? If not, he has lost his day in court, and must suffer the penalty of his negligence, and it makes no difference whether the defense were a legal or equitable one. (Dederick v. Hoystradt, 4 How. Pr. 350; Hunt v. Farmers' L. & T. Co., 8 How. Pr. 416.)

I have said that this equitable set-off is not res adjudicata. Certainly the matter set forth had not been adjudicated in fact, but it is claimed that the general character of the judgment necessarily implies that it was passed upon; that the finding the issues for the plaintiff must have included all that were made by the pleadings. It certainly would include all that were prosecuted or involved in the prosecution. The record shows that this defendant (the present plaintiff) did not appear. His set-off was not then prosecuted, whatever the entry, for it could not be prosecuted. A set-off is an independent claim; a defendant may bring it in to extinguish, in part or the whole, the one upon which he is sued, or he may sue upon it independently. But however brought into court, it is an affirmative demand, that can not be investigated upon the merits unless prosecuted by him who makes it. The court does not sit to represent parties, but to hear their allegations and proofs; and if they fail to appear and present their demands, it can only dismiss them without adjudication. This is necessarily so, and I can not find that the contrary has ever been held.

The subject of former adjudication in relation to prosecutions by plaintiffs, has often been before the courts, and it is always held that the court must have had jurisdiction; that the decision, to be a bar, must have been upon the merits, and the matter set out must have been determined. (See 1 Greenl. Ev., §§ 522, 530, and cases cited; also Bell v. Hoagland, 15 Mo. 360; Cow. & Hill's note 262 to Phillips' Ev.) And when a question is made as to the identity of the matters litigated in the first suit, parol evidence is admissible to explain the record. (Same note and cases cited.) And this court has held, in Normanser v. Hitchcock, 40 Mo. 178, and in Downing v. Still, 43 Mo. 321, that if the plaintiff fails to appear and prosecute his action, the court can not render judgment upon the merits, but must dismiss it. (See also Stephens on Plead. 109.) The same rule should hold in favor of an independent claim set up by a defendant if he fail to appear and...