41 S.W.2d 1066 | Mo. Ct. App. | 1931
Lead Opinion
Plaintiff, seventeen years of age, brought suit by his next friend in the circuit court of Jackson county on the 5th day of April, 1928, to recover damages for personal injuries alleged to have been sustained by him as the result of defendant's negligence. Plaintiff recovered judgment for five thousand dollars, and the defendant appeals.
The sufficiency of plaintiff's petition is not questioned.
The defendant's answer, upon which the case was tried, contains a general denial and an averment that on the 18th day of June, 1928, the plaintiff filed in a justice of the peace court in Kaw Township. Jackson county, an application for the appointment of a next friend, to-wit, his mother, for the purpose of prosecuting an action against the defendant herein, together with written consent of his said mother to act as such next friend. The petition, consent, and subsequent proceedings before the justice are, upon their face, in strict compliance with the statutes governing the institution of suits by infants in justice of the peace courts. The answer also alleges and sets forth that after the appointment of a next friend for plaintiff, plaintiff, by his said next friend, filed statement in which he alleged the same cause of action as stated by him in his petition filed in the circuit court, and wherein the amount sought to be recovered is the sum of $400; that the cause was tried before said justice and a judgment, which is set forth in full and is upon its face regular, was, on the same day, rendered. The judgment of the justice is pleaded in bar of the suit pending in the circuit court. Contributory negligence is also pleaded in the answer.
Plaintiff filed reply to the answer, the allegations of which will be hereafter mentioned.
Upon the hearing of the plea in bar the defendant offered in evidence the record of the proceeding before the justice. Plaintiff objected to the introduction of said record because it was incompetent and because the judgment set forth in the answer "is a wholly void judgment and in no manner binding on the plaintiff." The objection was sustained upon the theory "that the judgment is void on the face of the pleadings." That ruling is assigned as error.
It is not necessary to cite authorities to support the proposition that a judgment, regular upon its face, rendered by a court of competent jurisdiction, is binding and conclusive upon the parties to it. The binding force and effect of a judgment applies to an infant the same as to an adult. [Fiene v. Kirchoff,
The order in which suits between the same parties are brought is immaterial in the determination of this question. It has been said: "And if two suits are brought on such a claim, the first suit brought may be pleaded in abatement to the other, or if the judgment is *367
rendered in the second writ, this judgment may be pleaded in bar, to the further prosecution of the first suit." [Ruddle v. Horine,
"It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order of time in which the suits are commenced." [34 C.J. 758.]
"An exception to the general rule exists where a court of equity has first obtained jurisdiction to give complete relief; and in such case the equitable proceeding is not barred by a judgment rendered in a summary proceeding subsequently commenced." [34 C.J. 758.]
It is argued by plaintiff that after the suit was filed in the circuit court, the court could not be ousted of its jurisdiction by a proceeding subsequently commenced before a justice of the peace on the same cause of action and between the same parties.
There are cases in which the language used is such as to justify the argument. In determining the scope and effect of a decision, it has been said: "The language used by a judge in his opinion is to be interpreted in the light of the facts and issues held in judgment in the concrete case precisely as in every other human document." [State ex rel. v. St. Louis,
In the case of Grey v. Independent Order of Foresters, 496 S.W. 779, it is said: "When two courts have coordinate jurisdiction, the one whose jurisdiction first attaches will retain it and proceed to final judgment regardless of the action of the other court."
Such pronouncement is in legal effect found in the following cases: State ex rel. v. Reynolds,
Plaintiff also cites State ex rel. v. Guinotte,
The pendency of the suit in circuit court did not deprive the justice of jurisdiction. [Williams v. C.B. Q.R.R. Company,
When plaintiff brought suit in the justice court, the fact that his suit was pending in the circuit court, could have been pleaded by defendant in abatement of the former. But, if pending the hearing of a plea in abatement the plaintiff had dismissed the suit in *368
the circuit court, he could have proceeded with the suit in the justice court. The pendency of the first suit is a matter of defense and must be pleaded in abatement or it is waived. [Warder v. Henry,
In the case of Martin v. Cotton Oil Company,
We are cited to the case of Robinson v. Floesch Construction Company,
The statement filed with the justice pleaded a case belonging to a general class of which that court had jurisdiction. The record reveals that court had jurisdiction of the parties. The judgment is, upon its face, regular, and inasmuch as we cannot, as a matter of law, say that the unproven allegations of plaintiff's reply are true, we cannot adjudge the judgment to be other than what it upon its face purports to be, namely, a valid and conclusive adjudication of the rights of the parties to the cause. Plaintiff evidently recognized the force of the judgment when he in his reply said "if said pretended judgment is allowed to stand it will bar further attempts of the plaintiff to presents his claim for damages for said injuries in this court." We agree that the statement thus made is correct.
It is argued that the judgment is inadequate to compensate the plaintiff. A final judgment is not void, though inadequate or excessive. It may be voidable if properly assailed but valid when attacked collaterally. It has been said that a judgment is not void *369
because the petition upon which it is based fails to state a cause of action. [Winningham v. Trueblood,
We have refrained from expressing an opinion on the question as to whether the validity of the judgment may be assailed in a reply because that question is not before us.
Error is assigned to the giving of plaintiff's instructions numbers 2 and 3 in relation to plaintiff's alleged contributory negligence. Similar instruction have met the approval of the Supreme Court. [Beebe v. Kansas City,
The judgment is reversed and the cause remanded. The Commissioner so recommends. Boyer, C., concurs.
Addendum
The foregoing opinion by CAMPBELL, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded. All concur, except Trimble, P.J., absent.
Addendum
The foregoing opinion by CAMPBELL, C., is adopted as the opinion of the court. The motion is denied. All concur, exceptTrimble, P.J. A absent.