29 S.W.2d 721 | Mo. Ct. App. | 1930
Lead Opinion
Plaintiff filed a bill in equity to enjoin an execution of a judgment which had been rendered against her in favor of one John P. Randolph on the ground that a suit was pending wherein plaintiff was seeking judgment against Randolph on a promissory note and that Randolph was insolvent. Plaintiff prayed that execution be stayed by injunction until her suit could proceed to judgment against Randolph so that she might have a set-off of the judgments in the event she procured judgment against Randolph in the pending suit. Plaintiff was granted a temporary injunction and upon final hearing the evidence disclosed that on the 3rd day of July, 1925, plaintiff filed suit against Randolph upon a promissory note for $1000 due June 15, 1925, less a payment thereon of $500. Defendant in that case filed a counterclaim in which it was alleged that the note in suit was null and void and had been cancelled and that there was a failure of consideration therefor and in which he alleged that plaintiff had taken possession of the leased premises and certain personal property belonging to defendant by means of fraud and deceit and an unlawful conspiracy, for which he prayed $20,814.16 actual and $10,000 punitive damages. There was a verdict for plaintiff for the unpaid balance of the note and interest and for defendant in the sum of $4000. Whereupon, the court rendered judgment for defendant for the amount of his verdict less the amount of the verdict for plaintiff. In this manner defendant obtained a judgment against plaintiff in the sum of $3,405.56. Plaintiff appealed and the judgment was affirmed on June 26, 1928, and the mandate of this court was returned to the circuit court of Buchanan county where the judgment had been rendered on the 26th day of July, 1925. Plaintiff filed another suit against Randolph seeking recovery upon a promissory note for $2000 due July 15, 1925. This suit is still pending. The evidence shows that if Randolph is liable upon the $2000 note upon which the pending suit has been brought, he is insolvent. Both of plaintiff's notes were given pursuant to the contract whereby plaintiff leased the summer resort property to Randolph, so that both of plaintiff's notes and Randolph's cause of action upon his counterclaim arose *775 out of the same transaction. The judgment in favor of Randolph upon his counterclaim was rendered March 5, 1927, and was assigned to Robert B. Orr on the 10th day of July, 1928, fourteen days after the mandate had been returned, pursuant to an affirmance of the judgment by this court.
It is alleged in the petition that the assignee of the judgment knew at the time the assignment was made that plaintiff had a demand against Randolph and that suit was pending thereon in the circuit court of Buchanan county; that defendant Orr paid nothing for the alleged assignment, and that it was made for the purpose of endeavoring to prevent a set-off by the plaintiff. Defendant Randolph testified that the Fidelity Trust Company held his notes for $15,000 to $17,000; that the trust company had gone into liquidation and that defendant Orr was the deputy commissioner of finance in charge of liquidation; that defendant assigned the judgment upon his counterclaim as security for notes he owed to the trust company. He did not testify as to whether defendant Orr had knowledge of plaintiff's pending claim against him. Defendant Orr did not testify at all. Mr. W.J. Gresham was a witness for plaintiff and he testified that he was one of the attorneys for plaintiff in the suit on the $1000 note in which Randolph recovered judgment upon his counterclaim. He was asked to state why it was that he did not undertake to plead the cause of action on the $2000 note as against the counterclaim set up in that suit. Respondent's attorney then made the following objection:
"We object to that as it could not throw any light upon this suit and the only question would be whether plaintiff had a right to claim upon this $2000 note."
The court said:
"If it is a question of the policy of the management of the other suit it would not be admissible, but if it is a question of denial of a legal right to file it, that is something you would have a right to show."
Defendant's attorney then said:
"If the court please, we object to any testimony of policy or management of the case or action with reference to making two cases or one case, because the only question here involved of that kind is a question of law and not subject to testimony of witness."
The objection was sustained. The court found the issues for the defendant and ordered plaintiff's petition dismissed and the temporary injunction dissolved. A motion for new trial was overruled, and plaintiff appealed.
Respondent contends that the trial court properly denied relief because plaintiff had an adequate remedy at law by which she could have obtained a set-off. It is contended that she could have procured *777
a consolidation of the suits upon the two notes. Our statute provides that whenever several suits founded alone uponliquidated demands shall be pending in the same court by the same plaintiff against the same defendant, the court in which the same shall be prosecuted may, in its discretion if it appears expedient, order such suits to be consolidated into one action. [Section 1393, R.S. 1919.] Surely, the plaintiff could not be expected to take precautions against the counterclaim of an insolvent defendant until the counterclaim was pleaded. When the counterclaim was filed the suit was then upon both the petition and the counterclaim, and was no longer founded alone upon liquidated demands. The counterclaim prayed for unliquidated damages in the sum of more than $30,000, and the judgment was for $4000. The courts of this State have held that the statute is the only authority for consolidation of actions, and an order of consolidation which does not come within the provision of the statute is reversible error. [Priddy v. Mackenzie,
In our opinion it is not necessary to determine that the two cases could have been consolidated. It is sufficient to sustain the plaintiff's right to maintain the present action that the propriety of such proceeding was extremely doubtful. [French v. Garner, 7 Port. (Ala.) 549.] Such a consolidation has not received the sanction of the Missouri courts, and there are grave reasons against the propriety of such a course. In the case of Aimee Realty Co. v. Haller,
Respondent claims that appellant could have obtained a set-off at law by adding another count to her petition in the first suit alleging a cause of action upon the $2000 note. It must be remembered that the suit upon the $1000 note was filed before the $2000 note became due. The general rule is that a suit is prematurely brought if the petition is filed before the cause of action has accrued, and such a suit may not be maintained, even though the cause of action has accrued at the time of the trial. As a consequence it has been held that an amended petition may not set up any cause of action which had not accrued when the original petition was filed. [Rice v. McClure,
It is true that there is much authority to the effect that a court of equity will not entertain a bill praying equitable set-off when plaintiff unnecessarily neglected to avail himself of his claim as a defense, set-off, counterclaim or otherwise, in the action at law in which the judgment was rendered, the enforcement of which he seeks to restrain. [Hendrickson v. Hickley, 17 How. 443; Fillmore v. Hodgman,
There is also authority to the contrary. [Norton v. Wockler,
Respondent contends that this case may not be reviewed upon the evidence because it is a proceeding in equity and the record does not show that all the evidence in the trial court has been preserved. There is nothing appearing upon the face of the abstract of the bill of exceptions that indicates that any evidence has been omitted. Apparently respondents base their claim upon the fact that the bill of exceptions does not affirmatively recite that the printed matter is all of the evidence.
Rule No. 13 of our court provides that it shall be presumed as a matter of fact in all bills of exceptions that they contain all of the evidence applicable to any particular ruling to which exception is saved.
The case of Heffernan v. Weir,
The decree of the trial court should be reversed and the cause remanded with directions to enter a decree for plaintiff enjoining defendants from proceeding with the sale of her property under execution issued in the case of Lula A. Jegglin, plaintiff, against defendant John P. Randolph, in which final judgment was rendered by the circuit court of Buchanan county, Missouri, on March 5, 1927, in favor of John P. Randolph for $3,405.56 and costs until such time as plaintiff will have had an opportunity to try her suit filed against defendant John P. Randolph on the 26th day of July, 1925, in the circuit court of Platte county, Missouri, and now pending, on change of venue, in the circuit court of Buchanan county, Missouri. The commissioner so recommends. Boyer, C., concurs.
Addendum
The foregoing opinion of BARNETT, C., is adopted by the court. The decree is reversed and the cause remanded with directions set out in the opinion. Bland and Arnold, JJ., concur; Trimble,P.J., absent.