Schmitt v. Pierce ( 1964 )

PRITCHARD, Commissioner.

On February 19, 1958, Otho Pierce and Lois Pierce, husband and wife, both died intestate as a result of an automobile accident. By Count I of their petition plaintiffs sought to prevent the administrators of the estate of Otho Pierce, deceased, from charging one-half of the Federal Estate Tax paid in total amount of $47,792.82, against the distributive share of the estate of the surviving widow, Lois Pierce, deceased, and sought also a decree declaring that the doctrine of equitable contribution for such Federal Estate Tax be here applied. A motion to dismiss said Count I upon the ground of res adjudicata was made by the defendants Robert O. Pierce and Helen Hinchey, individually and as administrators of the estate of Otho Pierce, deceased, which motion was sustained by the trial court and judgment of dismissal of Count I of the petition was entered. By Count II of their petition plaintiffs sought to prevent the administrators of said Otho Pierce estate from paying from that estate certain fee bills in the amount of $1,005.85 in two prior consolidated suits to determine the survivorship of the widow, Lois Pierce, deceased, which fee bills were assessed against Robert O. Pierce and Helen Hinch-ey, individually, by the court in the two previous cases. Plaintiffs appeal from the judgment of the court against them on both counts of their petition.

The motion to dismiss Count I is as follows:

“Defendants move the court to dismiss Count One of plaintiffs’ petition for the reason that all matters of alleged controversy therein contained have been judicially determined by the final decree in the case of Robbie Schmitt, et al vs. Robert O. Pierce, et al. # 18,496 and the case of Robbie Schmitt et al vs. Robert O. Pierce et al # 18,497, a certified copy of said decree is attached hereto and made a part of this motion.”

In the trial court’s decree in the two prior consolidated cases, a certified copy of which decree is before this court, the matter of the interests of the parties in lands owned individually by Otho Pierce, deceased, ánd in lands owned by him and his spouse, Lois Pierce, deceased, as tenants by the entirety, is determined. Then the decree goes on as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that one-half (i/¿) of all the personal property and other assets, excluding real estate, belonging to Otho Pierce and in the hands of Robert O. Pierce and Helen Hinchey, as Administrator and Administratrix of the estate of Otho Pierce, deceased, as well as one-half {V2) of personal property and other assets, excluding real estate, which should properly be included in said estate of Otho Pierce, are and belong to the estate of Lois Pierce; and that Robert O. Pierce and Helen Hinchey, as Administrator and Administratrix of the estate of Otho Pierce and their successors, if any, are directed that upon the completion their administration of the estate of Otho Pierce, deceased, they turn over, pay to and deliver to the administrator of the Lois Pierce estate one-half (1/2) of the estate of Otho Pierce remaining after the payment of taxes and other necessary expenses incurred in the administration of the Otho Pierce Estate;

“AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs of these proceedings be taxed against the defendants, Robert O. Pierce and Helen Hinchey, and that execution issue therefor.

“Dated this 6th day of December, 1958.” (Emphasis supplied.)

Upon appeal said decree was affirmed by this court without modification, and it was said in the opinion: “The fact issues in the trial court were: Did one survive the other, or did they die simultaneously within the meaning of the Uniform Simultaneous Death Act, Chapter 471.” See Schmitt v. Pierce, Banc, Mo., 344 S.W.2d 120, 122, in which it was judicially determined that Lois Pierce survived her husband, Otho Pierce.

Insofar as is shown by the records and exhibits which we have before us in the prior cases and in our opinion above cited there was no issue concerning the apportionment of the Federal Estate Tax between the two estates. The sole issue was the survivorship of the widow, and that was the ultimate fact which was determined in these cases. “[T]he law is well settled that a judgment or decree is only conclusive and operates as an estoppel as to the issues actually litigated and settled, and where the subsequent action is upon a different claim, the judgment in the former case is only conclusive and only bars those issues which were actually tried.” (Emphasis supplied.) Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, 639[12]; Abeles v. Wurdack, Mo., 285 S.W.2d 544. The causes of action in the first consolidated suits and in the case at bar are not the same. The identity of the causes of action is one of the essential elements which is necessary to support a plea of res adjudicata. See State ex rel. Dalton v. Reorganized District No. 11, Mo., 307 S.W.2d 501, 506[3]. There is no fact decided in the first suits which would be determinative of the issue of law here, i. e., the thrust or burden of the Federal Estate Tax upon the estates of the two decedents. See Abeles v. Wurdack, supra, loc. cit. 285 S.W.2d 546[1-3], where it is said, “A judgment between the same parties on a different cause of action is binding as to the facts actually decided, and necessarily determined in rendering the judgment, under what is called estoppel by verdict.” See also Reis v. La Presto, Mo., 324 S.W.2d 648, 652[2-5],

Although the parties have agreed that the former decree was prepared by counsel for appellants for the trial court, the inclusion in the decree of the order that the administrators of the Otho Pierce estate “pay to and deliver to the administrator of the Lois Pierce estate one-half (i/á) of the estate of Otho Pierce remaining after the payment of taxes and other necessary expenses incurred in the administration of the Otho Pierce Estate,” was surplusage. We hold that the former suits were not res adjudicata of the issue in the present suit, and the trial court erred in dismissing Count I of the petition upon that ground.

The trial court disposed of Count I of plaintiffs’ petition by sustaining a motion to dismiss upon the ground of res adjudicata. There was no formal pleading by defendants to the merits of plaintiffs’ petition. Defendants say this court should not proceed to dispose of this case in the absence of their pleading; that “Surely if the respondents have the defense of accord and satisfaction, or any other defense, we should be permitted to plead and prove it. Before any case under a theory of equitable apportionment has been decided adversely to respondents, surely respondents are entitled to present evidence of equities favoring their plan of distribution.” The stipulation of facts of the parties here, made on the same day of and just prior to the judgment of dismissal below, covers only (as here now relevant) the fact that the administrators of the Otho Pierce estate intend to charge one-half ($23,896.41) of the estate tax against the distributive share of the Lois Pierce estate. The issue of equitable apportionment was thus not tried to the court below, and defendants are entitled to plead and prove any defenses or equities bearing upon that doctrine. The stipulation does not cover any facts relating to these defenses, including accord and satisfaction, which if good, would eliminate any issue of equitable apportionment because the parties by any agreement constituting an accord and satisfaction would thereby themselves dispose of the matter of the thrust or burden of the Federal Estate Tax.

We now take up the propriety of the judgment of the court directing that the court costs in the two prior actions to determine survivorship be paid by the administrators of the Otho Pierce estate as a proper obligation therein. It is to be noted that the recital of the judgment entry (above set forth) in those cases taxed the court costs against defendants therein, Robert O. Pierce and Helen Hinchey. This was a final judgment, and in the appeal of these actions the judgment as to assessment of costs was undisturbed. So far as this record reveals there was no presentation to the trial court in the two previous cases in the motion for new trial any matter relating to an erroneous judgment for the court costs of the action. “A motion for a new trial within the proper time is the only way for obtaining revision of a specific judgment for costs.” Beecham v. Evans, 136 Mo.App. 418, 117 S.W. 1190, 1191. Appellants are correct in saying that the judgment for costs cannot now be collaterally attacked.

The judgment of the trial court assessing the court costs against the estate of Otho Pierce, deceased, upon Count II of plaintiffs’ petition is reversed.

The judgment of the trial court upon Count I of plaintiffs’ petition is reversed, and this case is ordered remanded for further proceedings.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.