Abernathy Ex Rel. Shepard v. Missouri Pacific Railway Co. , 287 Mo. 30 ( 1921 )

This suit was instituted on the 13th day of February, 1917, in the Circuit Court of Benton County, Missouri, by Ward Abernathy, by the curator of his estate, James J. Shepard. The action was to recover damages for personal injuries sustained by plaintiff by being run over by a car being operated by the Missouri Pacific Railway Company at Cherokee, Kansas. The injury occurred on the 10th day of September, 1905. The petition states a common-law action for negligence, in that defendant negligently and carelessly backed a string of its cars on a side track with such force against a stationary car as to run it against and over plaintiff and so injury him that both of his legs had to be amputated, all of which, it is alleged, was done without the exercise of ordinary care, which, had it been exercised, would have disclosed plaintiff's presence and his situation of imminent peril. Recovery was sought under the humanitarian rule. The petition alleges that plaintiff was a minor, nineteen years of age, when the present action was brought, and that he was seven years of age when the accident happened, — thus disclosing a lapse of twelve years from the date of the accident to the date of the suit.

Defendant answered by general denial, a plea of contributory negligence that defendant railway was defunct, and plaintiff's father, Burl Abernathy, desiring to make a settlement with defendant, arranged with it to pay plaintiff the sum of $250 and costs of a friendly suit, which was to be in full acquittance of all liabilities of defendant in the premises. To this end Burl Abernathy, father of plaintiff, was appointed guardian of plaintiff by the Probate Court of Crawford County, Kansas, the county in which the accident happened and the subsequent proceedings were had, on the 17th day of May, 1907, with full power under the laws of said State to collect, manage and dispose of said estate under the order of the court and to do and perform such acts as might be required of him by law or the decree, order, or judgment of any court of competent jurisdiction. Said guardian duly qualified in this behalf and was authorized to, and did, institute suit on May 17, 1907, in the district court of said county and, upon due appearance of both parties to said cause, the plaintiff by Curran Curran, his attorneys, and defendant by J.J. Campbell, J.J. Richards and C.E. Benton, a hearing was had thereon (a jury being waived) upon the pleadings, evidence and agreement entered into between the parties, judgment was rendered in favor of plaintiff and against defendant for the sum of $250 and $8.40 costs. This sum was paid by defendant to the clerk of said court, for the use of plaintiff to his guardian. Defendant pleaded all the foregoing facts in bar of the present action. Some other matters, alleged to be defensive to the action are pleaded by defendant, but in the view we take of the matter they are immaterial and will not be further referred to.

Plaintiff's reply was a general denial of the averments of the answer; a plea that the action of the probate court, in appointing plaintiff's guardian, and of the District Court of Crawford County, Kansas, in rendering judgment for plaintiff, were both void and were procured by fraud, deception and misrepresentation practiced upon them by defendant; that Curran Curran did not represent the plaintiff in the Kansas courts, and that the judge did not sign the judgment rendered.

I. Plaintiff filed a motion to dismiss the appeal herein on the ground that the assignments of alleged error wereAssignments. not sufficiently specific and distinct in alleging what the supposed error was and, hence, is too general to justify review by us. Under the holding of the later cases it is not necessary for assignments of error to be more specific and distinct than those of the instant case. [Wampler v. Railroad, 269 Mo. l.c. 483; United Rys. Co. v. Reynolds,278 Mo. 554.] We overrule said motion.

II. Defendant assigns as error the refusal of the court nisi to give its instruction, at the close of the testimony, directing a verdict in its favor. If this position is correct itDirected will dispose of all other questions raised.Verdict.

III. The judgment of the District Court of Crawford County, Kansas, where the cause originated and was tried, omitting caption, reads as follows:

"Now on this the 17th day of May, 1907, that being a day of the regular May term, 1907, of said court, the above entitled case comes on for trial, plaintiff appearing byJudgment: Curran Curran, his attorneys, the defendantCollateral Attack appearing by J.J. Campbell, J.J. Richards and C.E. Benton, its attorneys, and a jury having been waived, said cause is submitted to the court upon the pleadings, evidence and agreement of the parties, on consideration whereof the court finds for the plaintiff, and finds that plaintiff is entitled to recover the sum of two hundred and fifty dollars and costs of suit. It is therefore considered, ordered and adjudged by the court that said plaintiff have and recover of and from said defendant, the Missouri Pacific Railway Company, the sum of two hundred and fifty dollars and costs herein, taxed at $8.40.

"ARTHUR N. FULLER, Judge."

Where a court of another state having jurisdiction of the person and subject-matter of the cause of action and full power to hear and determine it and, in pursuance thereof, does hear and determine it by rendering the judgment above set out which was duly paid to the clerk of said court, for the use of plaintiff, to his guardian (theretofore duly appointed by the probate court of the county and state where said cause was pending), can the plaintiff successfully collaterally attack said judgment by alleging in his replication that it was procured by fraud, deception and misrepresentation practiced by defendant?

The probate court of Kansas had jurisdiction over the subject-matter before it and likewise jurisdiction over the person of Ward Abernathy.

In this collateral attack, the judgments and orders of said court are conclusive and cannot be called in question here. [Pritchard v. Madren, 31 Kan. 38; Morris v. Sadler, 74 Kan. 892; Smith v. Clausmeier, 136 Ind. 105; Oldaker v. Spiking, 210 S.W. l.c. 62, and cases cited; Wright v. Hetherlin, 209 S.W. l.c. 874; Thompson v. Pinnell, 199 S.W. l.c. 1013; Harter v. Petty, 266 Mo. 296.]

It is not necessary to cite authorities on the proposition that a judgment void on its face binds no one and may be collaterally attacked whenever or wherever it comes in the way.

But on the other hand, where the record shows on its face that the court had jurisdiction over the person and subject-matter and hears the cause and renders a judgment fair on its face, the rule is the reverse. See Kansas cases above cited and State ex rel. v. Ross, 118 Mo. 23; Lovitt v. Russell, 138 Mo. 474; Johnson v. Realty Co., 167 Mo. 325; Fitzgerald v. DeSoto Special Road Dist., 195 S.W. 695; Rivard v. Railroad, 257 Mo. 135, l.c. 168; Abington v. Townsend, 271 Mo. l.c. 615; Johnson v. Merchants' Miners' Bank, 213 S.W. 815-16-17; 15 R.C.L. p. 835; State v. Case Sipes, 217 S.W. 309; Boas v. Branch, 208 S.W. l.c. 86; State ex rel. v. Patton, 271 Mo. l.c. 559.

Nor can a judgment rendered by a court of competent jurisdiction be set aside in a collateral proceeding on account of mere irregularities or errors even where these appear of the face of the record. [15 R.C.L. p. 859; Smith v. Clausmeier, 136 Ind. supra; State ex rel. v. Braudhorst, 156 Mo. 457; Gould v. Sternberg, 128 Ill. 510; Hine v. Morse, 218 U.S. 493; Fauntleroy v. Lum, 210 U.S. 230; Johnson v. Realty Co., supra.]

Nor does the contention made by plaintiff that Curran Curran did not represent him in his former suit in which he recovered damages against defendant, and which was paid to his guardian as above set out, and that said district court neglected to sign the judgment rendered, in anywise alter the situation. Both are effectually disproved by the recitals of the record and judgment in the cause.

As above pointed out plaintiff's attempted attack on the validity of the appointment of said guardian and upon said judgment are collateral, and cannot be maintained in the present action, and it is our conclusion that defendant's peremptory instruction should have been given.

Let the case be reversed. Railey and White, CC., concur.