Opinion
No. 40207.
November 10, 1947.
1. REMOVAL OF CAUSES: Cross-Petition Not Removable to Federal Court. A cross-petition seeking to enjoin the further prosecution of the cause of action sued on does not provide a basis for removal to the federal court.
2. EVIDENCE: Opinions of Supreme Court Admissible. Opinions of the Supreme Court in prior cases involving the same issues were admissible whether or not correctly decided. And it was the duty of the trial court to take judicial notice of them.
3. JUDGMENTS: Judgment Supported by Minutes. A prior judgment introduced in evidence was supported by the minutes of the court which rendered the judgment.
4. JUDGES: Masonic Judges Not Disqualified. Judges who were members of the Masonic Order were not disqualified from ruling on the validity of a trust instrument because part of the trust was for the benefit of a Masonic Home.
5. CONSTITUTIONAL LAW: No Constitutional Issues. If prior opinions of the Supreme Court were incorrect, there would be no constitutional issue involved.
6. INJUNCTIONS: Vexatious Litigation: Injunction Proper. It was proper to issue an injunction against continued litigation of issues already determined by previous actions.
7. APPEAL AND ERROR: Frivolous Appeal: Assessment of Penalty. The Supreme Court would be justified in assessing a penalty under Sec. 140(d) Civil Code for taking a frivolous appeal.
8. ATTORNEY AND CLIENT: Unethical Attacks on Judges. Plaintiff's counsel has violated a Canon of Ethics by unwarranted and reckless statements against trial and appellate judges.
Appeal from Howell Circuit Court. — Hon. Gordon Dorris, Judge.
AFFIRMED.
J.N. Burroughs for appellants.
(1) The former case lacked every one of the essential elements of a former adjudication, to-wit: (a) The parties were not the same; (b) the causes of action were not the same; (c) the thing involved was not the same; and, (d) the quality of the persons was not the same, and the appellants cited authorities holding that in event any one of the four essentials above mentioned was lacking then there would be no former adjudication, to-wit: Stephens v. Moore, 249 S.W. 601; O'Malley v. Musick, 177 S.W. 749; Taylor v. Welch, 168 Mo. App. 223, 153 S.W. l.c. 494; M., K. T. Ry. Co. v. American Surety Co., 236 S.W. 657. (2) The judge who wrote the decision in the will case wrongfully held that there was no statute that suspended the running of the five-year Statute of Limitations against the right of interested parties, to bring a suit to construe a will. Secs. 538, 540, R.S. 1939; Tapley v. McPike, 50 Mo. 589; Hughes v. Burris, 85 Mo. 660. (3) The judge who decided the trust case, failed and refused to make application of the "Declaratory Judgment Act," being sections 1126 to 1140, inclusive, of R.S. 1939, which was a special act of the state legislature for the protection of the property rights and interests of all citizens, and also failed and refused to make application of the court decisions construing said "Declaratory Judgment Act," to the case then at bar. Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39; Smith v. Pettis County, 136 S.W.2d 282; School District v. Smith, 11 S.W.2d 167; Hill v. Wright, 20 A.2d 388. (4) The judge in writing the decision in the trust case, wrongfully and against all rules of law, held that the petition of appellants involved the trust instrument alone for the claimed reason, that the prayer did not ask that the residuary clause of the will be declared invalid, that it sought relief against the trust instrument alone. It is the rule that relief will be granted upon the facts stated in the petition and not on the prayer. Gunnell v. Emerson, 80 Mo. App. 322; Liese v. Myer, 145 Mo. 547; Lackawana Ry. v. Long, 231 Mo. 605. (5) Before a plea of former adjudication can be invoked, there must be an adjudication on the merits and the merits were in no way involved in the will case and it is a wrongful usurpation for a judge to go outside the case he has in hand for a pretext to find against a party. State ex rel. McManus v. Muench, 217 Mo. 124; Wilson v. Hartford Fire Ins. Co., 254 S.W. 266; M., K. T. Ry. Co. v. American Surety Co., 236 S.W. 657. (6) The judge who decided the will case ignored the following decisions. Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39; Proctor v. Board of Trustees, 123 S.W. 862; Hill v. Wright, 20 A.2d 388; Masterson v. Masterson, 130 S.W.2d 629. (7) The Supreme Court had no right to construe the provisions of the will and trust instrument, for the reason that such power and jurisdiction was vested in the trial court alone. Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39; Smith v. Pettis County, 136 S.W.2d 232; School District v. Smith, 111 S.W.2d 167; Hill v. Wright, 20 A.2d 388. (8) By reason of the claim that said Board of Trustees did not constitute a legal entity, the attempted gift was to no one, and was therefore void. There must be a beneficiary, which must be a person or legal entity. 65 C.J., pp. 233-234 and footnotes; Hajek v. Bohemian Society, 66 Mo. 568; Railroad v. Express Co., 145 Mo. App. 371. (9) A gift of personal estate to a religious corporation did not come within the inhibition of Section 8, Article II of the Missouri Constitution. Proctor v. Board of Trustees, 225 Mo. 51; M.E. Church v. Walters, 50 F.2d 417. (10) An unincorporated religious association is not a legal entity and has no capacity to hold title, legal or equitable, to property. Farm Home Assn. v. Armstrong, 85 S.W.2d 461; Tucker v. Diocese, 264 S.W. 897; North St. Louis Christian Church v. McGowan, 2 Mo. 279. (11) The attempted gift for a "Memorial" was invalid. Board of Trustees v. May, 201 Mo. 360; Buchanan v. Kennard, 136 S.W. 415; Wentura v. Kinnerk, 5 S.W.2d 66; Schmuckers Estate v. Reed, 61 Mo. 592; Jones v. Patterson, 195 S.W. 1004; M.E. Church v. Walters, 50 F.2d l.c. 417; Bergen v. First Trust Co., 103 F. 260; Wheeler v. Smith, 50 U.S. 55. (12) The trial court erred in overruling the petition of appellants to transfer the cause and especially the injunction proceedings to the Federal Court. (13) The trial court erred in admitting in evidence the decisions of the Supreme Court in the trust case, No. 39,690, 355 Mo. 115, 195 S.W.2d 466, and in the will case, No. 39,583, 355 Mo. 109, 195 S.W.2d 463. Kansas City Pump Co. v. Jones, 126 Mo. App. 536; Engler v. Knoblaugh, 131 Mo. App. 481; Raney v. Home Ins. Co., 213 Mo. App. 1, 246 S.W. 57. (14) The trial court erred in admitting in evidence the purported judgment of the Circuit Court of Polk County over the objections of appellants. State ex rel. v. Muench, 217 Mo. 124; Davidson v. Real Estate Co., 226 Mo. 1. (15) It is settled law that fraud employed in procuring a judgment, renders it nonenforceable, and does not bar another action on the same matters. Mayberry v. McClurg, 51 Mo. 256; Moody v. Peyton, 135 Mo. 482; Davidson v. Real Estate Co., 226 Mo. 1; Wonderly v. Lafayette County, 150 Mo. 635. (16) A judgment on a demurrer does not bar another action between the same parties on the same cause of action. Wilson Co. v. Hartford Fire Ins. Co., 254 S.W. 266, 300 Mo. 1; State ex rel. McCanus v. Muench, 217 Mo. 124; Swing v. Karges, 150 Mo. App. 574. (17) A judgment sustaining a demurrer to a demurrable petition cannot be successfully pleaded in bar to a subsequent action on a complaint that is perfect. Bennett v. Southern Bank, 61 Mo. App. 297; Davis v. Robinson, 126 Mo. App. 293; Dorman v. Hall, 124 Mo. App. 5. (18) Motion to dismiss stands same as demurrer. Verdin v. St. Louis, 131 Mo. 26. (19) To grant an injunction order restraining and enjoining the appellants from prosecuting their original action against the respondents, would be to deprive them of their property without the due processes of law, and would be to deny them the equal protection of their property rights and interests under the law, in violation of their constitutional rights under Section 1 of the Amendment 14, of the Constitution of the United States. (20) To permit the decision in the trust case to stand would deprive the appellants of their property without the due processes of the law, and would also deny to them the equal protection of their property rights and interests under the laws enacted as special statutes for protection of all citizens and thereby violate their constitutional rights under Section 1 of Amendment 14 to the Constitution of the United States. (21) To permit the decision in the will case to stand, would deprive the appellants of their property without the due processes of the law, and would deny to them the equal protection of their property rights and interests under the laws. (22) That the arbitrary, unwarranted and wrongful refusal of the Supreme Court and the judges thereof, whose duty it was to pass upon the same, to permit the appellants to file their motion for a rehearing on the decisions in the trust and the will cases, or to transfer the same to the court en banc; and in overruling the application of appellants for leave to file said motions will deprive the appellants of their property without the due processes of the law, and it will also have the effect of denying to appellants the equal protection of their property rights, under the laws, in violation of their constitutional rights, as provided in Section 1 of Amendment 14 to the Constitution of the United States. (23) The judges were disqualified. Sec. 1059, R.S. 1939; Priddy v. McKenzie, 205 Mo. 181, 103 S.W. 968; Pearce v. Atwood, 13 Mass. 329. (24) A judgment obtained through fraudulent conduct or of self interest of the judge who renders the judgment will be declared invalid and of no effect; so held in the following cases: Burkharth v. Stephens, 117 Mo. App. 425, 94 S.W. 720; State ex rel. Schade v. Russell, 110 S.W. l.c. 677; State ex rel. Morehead v. Cartwright, 99 S.W. 48; State ex rel. Kochtiteky v. Herbst, 160 Mo. App. 443, 140 S.W. 925; State ex rel. Baldwin v. Davidson, 139 Mo. 118, 40 S.W. 765; State ex rel. Heller v. Thornhill, 160 S.W. 558; State ex rel. Verble v. Haupt, 163 S.W. l.c. 534; Wonderly v. Lafayette County, 150 Mo. 635.
A.W. Landis, R.L. Hyder, Arch A. Johnson, Herman Pufahl, Elliott H. Jones and A.D. Scarritt for respondents.
(1) The issues asserted by plaintiffs in the present suit are res judicata and may not again be litigated. McIntosh v. Wiggins, 191 S.W.2d 736; Norwood v. Norwood, 183 S.W.2d 118. (2) The judgment rendered in the Circuit Court of Polk County operated as an adjudication upon the merits and became a bar to another suit. Civil Code, Sec. 101, Laws 1943, p. 385; Pulley v. Ry. Co., 251 P. 1100, 122 Kan. 269. (3) The trial court had power, as a court of equity, to grant an injunction to prevent vexatious relitigation of matters which had been adjudicated. McIntosh v. Wiggins, 191 S.W.2d 637; Sylvester Coal Co. v. St. Louis, 130 Mo. 323, 32 S.W. 649; Swope v. Weller, 119 Mo. 556; Potter v. Adams, 143 Mo. 665; Prim v. Raboteau, 56 Mo. 407; Root v. Woolworth, 150 U.S. 401, 36 L.Ed. 1123; Moore v. Harkins, 101 S.E. 564; O'Haire v. Burns, 101 P. 755; Ferguson v. Ferguson, 98 S.W.2d 847. (4) Where a court has such power the granting of an injunction is a matter of discretion, and the same may not be reviewed on appeal unless there is shown a clear abuse of discretion. 43 C.J.S., pp., 420, 426. (5) The cross-petition herein did not constitute a case that was removable to the Federal Court, because: The cross-petition was not an independent suit but was purely defensive in character. Mohawk Rubber Co. v. Terrell, 13 F.2d 266; West v. Aurora, 6 Wall. 139, 18 L.Ed. 819. (6) The cross-petition for an injunction to stay a proceeding in a state court was not a matter within the jurisdiction of the Federal District Court, and, therefore, was not removable to such court. 28 U.S.C.A. sec. 71, 379; Toucey v. N.Y.L. Ins. Co., 314 U.S. 118, 86 L.Ed. 100. (7) The mere averment of a constitutional question, to-wit, that one has been deprived of his property without due process of law does not raise a question under the 14th Amendment, if the facts stated show that there was due process of law. Farrell v. O'Brien, 199 U.S. 89, 50 L.Ed. 101. (8) Alleged irregularities or errors by a state court in declaring or applying the law of the state do not raise a question under the 14th Amendment. 12 C.J., sec. 997, p. 1220; Howard v. Kentucky, 200 U.S. 164, 50 L.Ed. 421; Wagner Electric Co. v. Lynden, 262 U.S. 226, 67 L.Ed. 961; Dunbar v. New York, 251 U.S. 516, 64 L.Ed. 384. (9) The court should assess damages against appellants for a frivolous and vexatious appeal. Civil Code of Missouri, sec. 140 (d); Wagner Electric Co. v. Lynden, 262 U.S. 226.
Plaintiffs, alleging that they are heirs of Barsha A. Langston, deceased, brought suit in the circuit court of Howell County, presided over by Judge Gordon Dorris, asking a declaration as to their rights and interests under the residuary clause of the will of Barsha A. Langston, deceased, and under a trust instrument executed by her in her lifetime. Louise W. Langston and St. Louis Union Trust Company, as trustees and executors, and Louise W. Langston, as an individual, were made defendants.
Defendants filed a cross petition recounting various suits brought by plaintiffs to attack the validity of the Langston will [519] and trust, in all of which the decisions of circuit courts and the supreme court were adverse to plaintiffs' contentions; alleging that the instant suit can have no other purpose and effect than to harass the defendants and delay the settlement of the Langston estate; and praying for a temporary injunction and, after a hearing, a permanent injunction restraining plaintiffs from further prosecuting this suit or any other concerning the Langston estate and trust.
The trial court issued a temporary injunction. Plaintiffs filed an application to remove the suit to the Federal Court. This was overruled and plaintiffs filed an answer or reply to the cross petition. After a hearing the court granted a permanent injunction and plaintiffs have appealed.
On November 30, 1935, Barsha A. Langston executed a trust instrument transferring a large amount of personal property to Louise W. Langston and St. Louis Union Trust Company, trustees, with directions to pay the net income to the grantor during her life, then to Louise W. Langston during her life or widowhood, then to pay fifty per cent of the trust fund in specified proportions to certain named institutions and fifty per cent to trustees for the erection of a memorial.
Barsha A. Langston died, testate, in April, 1938. Her will, probated on May 17, 1938, devised and bequeathed certain property to the same trustees, for the same purposes and on the same conditions as provided in the trust instrument previously executed by her.
On December 26, 1938, plaintiffs filed suit to contest the will on the ground of undue influence and fraud. The trial judge, Honorable Warren L. White, directed a verdict for defendants. Plaintiffs appealed and Division Two of this court in an opinion by Commissioner Westhues, concurred in by all the judges of that division, remanded the case. [ 347 Mo. 1201, 152 S.W.2d 124.] A retrial resulted in a verdict of a jury and judgment of the court sustaining the will. Plaintiffs appealed, but dismissed their appeal on December 18, 1943.
In February, 1941, plaintiffs sued to have the provisions of the trust instrument declared void. The trial judge, Honorable Tom R. Moore, sustained a demurrer to the petition. Division Two of this court affirmed the case in an opinion by Judge Ellison concurred in by all the judges of that division. [ 351 Mo. 609, 173 S.W.2d 826.]
In April, 1944, plaintiffs sued to have the trust provisions in the will declared void. The trial judge, Honorable C.H. Jackson, dismissed the suit as being barred by the five year statute of limitations. Division One of this court affirmed the case in an opinion by the late Judge Gantt concurred in by all the judges of this division [ 355 Mo. 109, 195 S.W.2d 463.]
On September 28, 1943, plaintiffs again sued to attack the validity of the trust instrument. The trial judge, Honorable C.H. Jackson, dismissed the suit with prejudice. Division One of this court affirmed the case in an opinion by the writer concurred in by all the judges of this division. [ 355 Mo. 115, 195 S.W.2d 466.]
The effect of the foregoing decisions is that the provisions of the trust are valid and that plaintiffs take nothing either under the residuary clause of the will or under the trust instrument.
On August 21, 1946, plaintiffs brought the instant suit to attack the validity of the trust as provided in both the will and the trust instrument, stating in their petition that they made the same allegations as to the alleged invalidity of the trust as were made in their suits filed in May, 1942, and September, 1943. The trial judge, Honorable Gordon Dorris, granted a permanent injunction as above stated.
In their briefs on this appeal, plaintiffs make general assignments that the trial court erred in overruling plaintiffs' application to transfer the case to the Federal Court, in admitting in evidence two supreme court decisions and the judgment of the circuit court in the suit filed in September, 1943, and in granting an injunction. In another portion of their brief plaintiffs attack decisions in this matter previously rendered by the trial judges and by this court, attempt to raise a constitutional [520] question by alleging that those decisions deprive plaintiffs of property without due process of law, and question the propriety of participation in the previous cases and this case by the the judges of this court.
In the application to transfer the case to the Federal Court a diversity of citizenship is alleged; that the amount involved is $95,000.00; that the judges of the state courts are biased and prejudiced against plaintiffs and unduly influenced by defendants; that the judges of both the trial and appellate courts who have heretofore passed upon the matters involved are members of the Masonic Order, and bound to contribute to the Masonic Home [one of the beneficiaries named in the trust] and by reason of their obligations as Masons are disqualified from participating in the case.
Plaintiffs cite no case and offer no rational argument to show why the application to transfer should have been sustained. The Federal statute authorizes an application for transfer only by defendants, not plaintiffs. The cross petition of defendants was not an independent cause of action which transformed the plaintiffs into defendants. It was purely defensive in nature to restrain plaintiffs from persisting in fruitless litigation of matters already finally decided. Neither is a proceeding to restrain the prosecution of a case in a state court within the original jurisdiction of a Federal Court. [28 U.S.C.A., 71, 379; West v. Aurora, 6 Wall. 139, 18 L.Ed. 819.]
Plaintiffs' counsel made long objections to the introduction in evidence of two opinions adopted by this court, [ 355 Mo. 109 and 115, 195 S.W.2d 463 and 466] the gist of the objections being that the cases were incorrectly decided. Of course, there is no merit in the objections. Plaintiffs' application to transfer attacked these decisions and defendants relied upon them in their pleading. Whether or not they were correctly decided they were admissible and, without being admitted, it was the duty of the trial court to take judicial notice of them.
Plaintiffs' counsel objected to the introduction of the judgment of the circuit court of Polk County in the case in which the appeal is decided in 355 Mo. 115, 195 S.W.2d 466. That judgment dismissed plaintiffs' petition with prejudice and rendered judgment in favor of defendants for costs. Plaintiffs' counsel objected to the introduction of the judgment on the ground that it was not authorized by the judge's minutes. Those minutes show that plaintiffs' motion for leave to dismiss without prejudice was overruled and defendants' motion to dismiss was sustained. Plaintiffs' counsel prepared the transcript on appeal in that case and set out the judgment from which the appeal was taken. The transcript was approved and signed by the trial judge. This same counsel on page 28 of his brief in that case [our Number 39690] sets out the judgment in full:
"Thereupon the court, by its order duly made on the 31st day of July, 1945, and entered of record, sustained defendants' motions to dismiss as follows:
"Now on this day defendants' various motions to dismiss, heretofore on March 23, 1945, submitted to and taken under advisement by the court, are hereby sustained.
"Wherefore, it is ordered and decreed by the court that the plaintiffs take nothing by virtue of their petition and that the same be dismissed with prejudice and that defendants go hence without delay, and recover of plaintiffs their costs herein incurred."
Counsel's objection to the introduction of the judgment is entirely baseless.
Plaintiffs question the propriety of the judges of this court and the various trial judges heretofore mentioned participating in litigation involving the Langston trust because, it is alleged, all those judges are members of the Masonic Order. Some, but not all of the judges of this court are dues paying members of that Order. As to whether any or all the trial judges and the jury which sustained the Langston will are such members, we are not advised. However, no judge has any financial interest in this litigation. His dues to the Order and his right to seek a haven in the Masonic Home in the event that becomes necessary will not be affected by the outcome of this litigation. It might as well [521] be argued that a judge should be disqualified to sit in cases involving the collection of taxes because of the possibility that the future might make it necessary for him to accept an old age pension.
No constitutional question is properly raised in this case. Even if our decisions are erroneous plaintiffs have not been deprived of property without due process in a constitutional sense. [Dunbar v. New York, 251 U.S. 516.]
The trial court did not err in granting an injunction. All legal questions attempted to be raised here as to the validity of the trust have been finally decided in the previous cases mentioned. Paragraph 11 of plaintiffs' petition states that the same allegations are made and the same relief prayed in this suit as in the suits filed in May, 1942, and September, 1943. Both those cases were decided adversely to the plaintiffs by the trial courts and affirmed by this court. Surely even plaintiffs' counsel knew, or should have known, when he filed the instant suit that the circuit court would be bound by our previous rulings on the identical questions involved. A letter was introduced, written to one of the trustees by plaintiffs' counsel, stating that he did not regard our opinions as being determinative of the rights of plaintiffs and that he intended to bring further litigation. The prevention of such vexatious litigation by injunction is proper. [Sylvester Coal Co. v. St. Louis, 130 Mo. 323, 32 S.W. 649; McIntosh v. Wiggins, 354 Mo. 747, 191 S.W.2d 637.]
In Wagner Electric Co. v. Lynden, 262 U.S. 226, 62 L.Ed. 961, the Supreme Court of the United States declared that mere alleged errors of a state court in declaring the law did not raise a constitutional question under the Fourteenth Amendment, and not only dismissed the appeal, but assessed a penalty against appellant for taking a frivolous appeal. We would be justified in taking a similar course under Section 140(d) of our new Civil Code, but are reluctant to do so because the penalty would fall upon the plaintiffs who have been and will be penalized by the payment of substantial costs.
Plaintiffs' counsel in his pleadings and briefs has impugned the motives and integrity of the members of this court and the circuit judges heretofore named by unwarranted and reckless statements without foundation in fact or reason. Surely not all of them are wholly bad and virtue and wisdom possessed only by plaintiffs' counsel. We do not wish to say anything to deter honest criticism of our decisions, but criticism should be fair and tempered with some respect for courts. We recommend the reading of that portion of the Canon of Ethics which says: "It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance."
As stated, much of plaintiffs' brief is devoted to argument and citations in an effort to prove that our former decisions are incorrect. We think they are correct.
The judgment of the trial court is affirmed. All concur.