Wuelker v. Maxwell

• Citation: 70 S.W.2d 1100
• Decision Date: 08 May 1934
• Docket Number: No. 22776.,22776.
• Parties: WUELKER et al. v. MAXWELL et al.
• Court: Court of Appeal of Missouri (US)

70 S.W.2d 1100

WUELKER et al. v. MAXWELL et al.

No. 22776.

St. Louis Court of Appeals. Missouri.

May 8, 1934.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be reported in State Reports."

Action by F. S. Wuelker and another against Alice Maxwell, next friend of Lucy Maxwell, a minor, the latter individually, and another. Judgment for plaintiffs, and defendant Lucy Maxwell appeals.

Reversed.

McMahon & McMahon and John P. Griffin, all of St. Louis, for appellants.

George F. Heege, of Clayton, for respondents.

SUTTON, Commissioner.

This is an action in equity to set aside a judgment of the circuit court of St. Louis county for fraud in the procurement of the judgment. The judgment was obtained by Lucy Maxwell, as plaintiff, against F. S. Wuelker and the Belt Asphalt Application Company, as defendants, in a suit for damages for personal injuries suffered by her when struck by an automobile truck driven by F. S. Wuelker, and belonging to the Belt Asphalt Application Company, of which he was secretary and manager. In that suit Lucy Maxwell charged Wuelker and the asphalt company with negligence in operating the truck, whereby she was injured. The suit was instituted on October 20, 1930, and was returnable to the January term, 1931. Summons was duly issued and served on Wuelker and the asphalt company, both being insured against liability by the Equitable Casualty & Surety Company of New York. The surety company undertook the defense of the suit on behalf of Wuelker and the asphalt company. The defense was handled through Thomas Gibson Brown and Burney P. Bodard as attorneys.

Prior to the return term of said suit settlement was agreed upon between the parties whereby Lucy Maxwell was to receive $500 in full settlement of her claim. Because of the fact that Lucy Maxwell was a minor, it was agreed that a friendly suit be filed by her before a justice of the peace in the city of St. Louis, and that judgment for $500 be obtained in her favor against Wuelker and the asphalt company, the judgment, upon payment of this amount, to be satisfied, and the suit in the circuit court dismissed. Accordingly, such suit was filed and judgment obtained before the justice as agreed upon, and a draft was given by Brown on the surety company, payable in New York, in satisfaction of the judgment. Lucy Maxwell, through her counsel, immediately forwarded this draft to the surety company in New York for payment, but before the draft arrived in New York the surety company was put in charge of a receiver, and the draft was dishonored and returned, and it still remains unpaid.

No answer was filed to the suit pending in the circuit court, and no further appearance thereto was made on behalf of either Wuelker or the asphalt company subsequent to the settlement agreement. On March 12, 1931, about two and a half months after the draft was dishonored and returned, judgment was taken by default in favor of Lucy Maxwell against Wuelker and the asphalt company for $2,500. Execution was issued on said judgment, and the St. Louis County Bank was summoned as garnishee. Thereupon the present suit was brought, upon the trial of which the court gave judgment setting aside the judgment entered in the damage suit, and enjoining further proceedings thereon. From this judgment Lucy Maxwell appeals.

According to the evidence on the part of the appellant, Lucy Maxwell, the settlement agreement was conditioned that the draft given in satisfaction of the judgment in the justice court should be honored and paid, in which event only the suit in the circuit court was to be dismissed. It was understood by the parties at the time the settlement was agreed upon that the Equitable Casualty & Surety Company was in financial difficulties and likely to be put in charge of a receiver. Mr. Brown so informed appellant's attorneys, and the settlement was made in view of this situation, and was hurried through with the hope that the draft given pursuant to the settlement might be honored and paid before the company went into receivership. It was agreed that, in the event the draft was dishonored, the judgment in the justice court should be set aside and the settlement agreement should be treated as a nullity, and the status should be the same as before the settlement was made and the draft issued, and the suit in the circuit court should proceed the same as though no settlement had been made. When the draft was dishonored and returned, the...