74 Mo. 229 | Mo. | 1881
Lead Opinion
Wendell T. Davis, a citizen of Massachusetts, obtained judgment by default against Greene county, in the circuit court of the United States for the western district of Missouri, in the year 1875, in the sum of $13,382.40, for over-due interest coupons issued by said Greene county in favor of the Hannibal & St. Joseph Railroad Company to aid in building the Kansas City & Memphis branch of said road. To enforce this judgment the said United States circuit court issued a mandamus to the county court of Greene county, in obedience to which the said county court duly levied a tax of twenty cents on each $100 in value on all the taxable property in said county for the year 1878, which was duly extended on the tax-books, which were delivered to relator, as collector of said county, for collection. Defendant Rainey, a duly licensed merchant of said county, against whose goods, wares and merchandise a portion of said tax, amounting to the sum of $11.40, had been levied, refused to pay the same, and said tax remaining delinquent and unpaid, relator, as collector of said county, instituted this suit in the circuit court of Greene county against defendant, upon his bond as a merchant, to recover said tax. Defendants in their answer set up substantially that the judgment, for the payment of which the tax had been levied, was founded on interest
Upon trial the circuit court rendered judgment for plaintiff, from which defendants have appealed; and the-error assigned grows out of the action of the court in giving the following instructions, viz: (1) “That the judgment of the United States circuit court in favor of Wendell T. Davis, and against Greene county, is a final determination of the rights of the parties to that action, and is. conclusive of every fact necessary to uphold it.” 2. “That the order of the county court of date of February 6th „ 1878, is a levy of taxes to pay a judgment of the United States circuit court for the western district of Missouri, regular upon its face, and not for the purpose of paying interest coupons on bonds of the county, and although it, is admitted said judgment was rendered upon such coupons, the facts stated in the answer showing that the county was not liable thereon, came too late after final judgment,, and cannot be inquired into in this action.” The giving of these instructions over defendant’s objection, and the-refusal to give instructions asked by him directly the opposite of those given, constitute the error complained of.
This case is distinguishable from the case of the State ex rel. Watkins v. Macon Co. Ct., 68 Mo. 29, to which we-have been cited as sustaining the position of defendants’ counsel. In that case we refused a writ of mandamus to compel the county court to levy a tax to pay a debt against
Dissenting Opinion
Dissenting. — These are the grounds upon which I dissent from the foregoing opinion.
I.
The judgment rendered in the Federal court in favor of Davis, and against the county of Greene is not binding on the defendant Rainey. Neither is he concluded thereby. It is only the assertion of elementary law to say that a man, who is not a party to a suit, and who could not have
Aside from questions of privity not presented by this record, it is clear from the authorities that tbe test question in all cases where it is asserted that a man is bound by a judgment is this: Was he a party to the suit, or could he have become such ? Will it be contended for a moment that when the county of Greene was sued, that Rainey, if ever so desirous, could have been made a party-defendant along with the county ? If he could not have been, then plainly he could not be bound, or in any way concluded by the result of a suit to which he neither was,, nor yet could have been made a co-defendant. Mr. Bigelow says : “ It is a general principle, fundamental to the doctrine of res judicata, that personal judgments conclude only parties to them and their privies.” Bigelow Estop.,, p. 59. Mr. Greenleaf says: “ Parties, in the larger legal sense, are all persons having a right to control the proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from the- decision, if am. appeal lies/ .
This principle is extensively discussed and asserted in Strong v. Ins. Co., 62 Mo. 289, where the case of Robbins v. City of Chicago, 4 Wall. 657, is cited with approval. There Robbins, when sued by the city, was held bound by the-judgment recovered by Woodbury against the latter, on the express ground that Robbins “ knew the suit was pending and could have defended it.” This principle is also avowed by the Supreme Court of the United States in Rees v. Watertown, 19 Wall. 107. There Rees had recovered judgment against the city of Watertown, and had vainly endeavored by mandamus to collect the judgment thus recovered. The counsel for Rees contended concerning the city that: “The defendant is the same that contracted the debt. * * It is the embodiment of the citizens to act for them in this matter, made and unmade by them at their pleasure, so far as filling the offices and controlling their action is concerned. It had authority to borrow money for the citizens, to spend it for the citizens, and to defend against the payment of it at the expense of the citizens. In short, it had ample and exclusive authority to represent the citizens at every stage.” But the Supreme Court took a widely different view in reference to a citizen of Watertown being bound by the judgment rendered against the city, and in speaking on this point, said: “ He has never been heard in court. He has had no opportunity to establish a defense to the debt itself, or if the judgment is valid, to show that his property is not liable to its payment. * * The proceeding supposed would violate that fundamental principle of Magna Charta embodied, in the constitution of the United States, that no man shall
In Beardsley v. Smith, 16 Conn. 368, when speaking of the binding force of a judgment against the inhabitants of a town, the supreme court say : “ The writs have issued against the inhabitants of towns, societies and districts as parties. As early in the history of our j urisprudence as 1705 a statute was enacted authorizing communities, such as towns, societies, etc., to prosecute and defend suits, and for this purpose, to appear, either by themselves, agents or attorneys. If the inhabitants were not then considered as parties individually, and liable to the consequences of judgments against such communities, as parties, there would have been a glaring impropriety in permitting them to appear and •defend, by themselves; but if parties, such a right was necessary and indispensable.” Take the converse of the proposition thus announced by the supreme court of Connecticut .and apply it here: If it would be a “ glaring impropriety”
The case of Clark v. Wolf, 29 Iowa 197, is relied on by the majority to support their position that a judgment against a county binds and concludes every citizen thereof. That case, if it goes so far, is the only one that does, and has not a single authority to support it; is contrary, as already seen, to the text-books and the cases I have cited, and has no sound reason upon which it can rest. But that case does not, as I read it, announce in 11a its broadness, the position taken by my associates, The facts, of that case are peculiar, and entirely'diffareni, as I conceive, from this one. There one Berryhill, for himself and other citizens and tax-payers, had brought suit against the county to enjoin the collection of certain railroad taxes; he was successful, and the injunction was, by the state court, made perpetual. Afterward, the county was sued in the circuit court of the United States for the district of Iowa, and pleaded the injunction granted by the state court in favor of Berryhill and others; but the Federal court held the answer insufficient, the injunction void, and awarded a peremptory mandamus for the collection of the tax. And the supreme court of Iowa placed special stress upon the fact that Clark being a citizen of the county and the injunction suit of Berryhill and others being brought for himself and others, citizens of the county, and the question being one of common interest, all the citizens are treated and accepted in theory as parties and standing as Berryhill does,” and that court placed special and additional stress upon the further fact, italicizing' the words: That in the Federal
How different the case before us! Clark, when Berrynill sued to enjoin the county, could, as one of the citizens thereof, have been made a co-plaintiff, and when the county was sued in the Federal court, could very properly have intervened and been made a party defendant — thus bringing that case within the rule, I, relying upon the authorities quoted, have heretofore announced. These remarks are sufficient to dispose of the case of Clark v. Wolf, and the ruling of the majority of this court based thereon. If that case goes further than the view I have taken of it, it does so in flat disregard of all precedent, all principle, all authority, and in the very teeth of the plainest dictates of natural justice — which forbid a man -from being de'prived of any right until opportunity be first given him to be heard in his defense.
II.
If the above views be correct, then it must needs follow that the judgment against Greene county does not bind Rainey. Consequently the alleged debt sued on in the Federal court, is not, as to him, “merged in the judgment.” . He is a stranger thereto and may urge all such objections as any other stranger might urge against either the validity of the debt or the validity of the judgment.
III.
This court, in State ex rel. Wilson v. Garroutte, 67 Mo. 445, held the bonds in that case, being of the same class as those now in controversy, were absolutely void. A like result was reached by this court in respect to similar bonds, in State ex rel. Barlow v. Dallas County Court, 72 Mo. 329. To that ruling a majority of this court still adhere. But it is said we must not “ interfere with the power of the Federal court.” I grant it — I think, however, it will be time enough to discuss that point when such interference
Having said, as the organ of this court on two occasions, that such and similar bonds were void, I cannot consistently with my ideas of duty, assist in their collection. I will, as I ought, refrain from interfering with the jurisdiction or process of the Federal courts, but when they render judgments on bonds which our laws, and our constitution, as expounded by us, pronounce void, I will not so far stultify myself and the record I have made, I will not so far bow the knee to Federal usurpation as to become an aider and abetter in the collection of what I regard, and what this court has said are unlawful and unjust claims. This eoui't, in Garroutte’s ease, supra, refused to permit the county collector of Greene county to recover judgment for
A motion for rehearing was overruled.