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Moffett v. Commerce Trust Co.

Supreme Court of Missouri, Division One
Apr 8, 1946
193 S.W.2d 588 (Mo. 1946)

Opinion

No. 39509.

February 11, 1946. Rehearing Denied, April 8, 1946.

1. PLEADING: Parties: Misjoinder of Parties: Effect of New Code on Prior Actions: Grounds for Demurrer. The new Civil Code does not interpret the effect of the prior Code and has no effect upon a ruling made on December 30, 1944. Misjoinder of parties was a ground for demurrer under Sec. 922 R.S. 1939.

2. PLEADING: Parties: Executors and Administrators: Joint Cause of Action Not Stated: Misjoinder of Executrix and Widow: Demurrer Properly Sustained. The petition attempts to state a joint cause of action in favor of the plaintiff both as an individual and as executrix of her husband's estate. No such joint cause of action is stated, and the demurrer was properly sustained for misjoinder of parties. So it is unnecessary to determine whether a cause of action was stated in favor of the plaintiff in either capacity. The ruling of the trial court could also be sustained on the ground of misjoinder of causes of action.

3. COURTS: Trial: Notice: Circuit Court of Jackson County: Rules Not Violated: Notice Sufficient. The Circuit Court of Jackson County did not violate its rules as to notice by not allowing additional notice with all parties present in court, after demurrers were refiled to a petition which was amended so as not to affect the issues raised by the demurrers.

4. COURTS: Judgments: Pleading: Circuit Court of Jackson County: Prior Ruling Not Binding on Succeeding Judge: Waiver by Pleading Over. The prior ruling of Judge Buzard on former petitions was not before Judge Ridge when he sustained demurrers to an amended petition. And the error, if any, was waived by pleading over.

5. COURTS: Judgments: Circuit Court of Jackson County: Jurisdiction of Successive Judges: Prior Rulings Not Conclusive. The prior rulings by Judge Buzard were not binding on different judges of the same court who subsequently ruled on different petitions. There was no collateral attack on the prior ruling.

6. COURTS: Judgments: Pleading: Three Petitions Held Insufficient: Basis of Prior Ruling Immaterial: Waiver by Pleading Over. In determining whether judgment was properly entered after three petitions had been held insufficient it would be immaterial whether false statements in briefs had caused a prior ruling not shown to be incorrect, and the right to question such prior ruling was waived by pleading over.

7. PLEADING: Constitutional Law: Costs: Three Insufficient Petitions: Treble Costs Not Bill of Attainder. Sec. 948 R.S. 1939, providing for a dismissal with treble costs when three petitions have been found insufficient, is not a bill of attainder. And the statute is properly interpreted as allowing such costs in favor of the defendants.

8. CONSTITUTIONAL LAW: Judgments: Due Process Not Violated. Plaintiffs have had both due process and their day in court in litigation extending over many years. And prior judgments in other cases will not be disturbed.

Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

A.E. Watson and Martin J. O'Donnell for appellants.

(1) The circuit court erred in ruling on the alleged demurrers to the fifth amended petition, without the jurisdictional two days' notice required by its rules, on the same day they were filed, to-wit, December 30, 1944. Rule 29, Circuit Court of Jackson County (402-403); Rule 19, Circuit Court, Jackson County (405); Meierhoffer v. Hansel, 294 Mo. 195; Gordon v. Burris, 125 Mo. 39; Broom's Legal Maxims (8 Ed.), p. 99; Sec. 8, Art. XI, Mo. Constitution; Hovey v. Elliott, 167 U.S. 409; In re Letcher, 190 S.W. 19; Windsor v. McVeigh, 93 U.S. 274; State ex rel. v. Kansas City, 310 Mo. 542; XIVth Amendment, U.S. Constitution. (2) The court erred in giving effect to Section 948, R.S. Mo. 1939, for the reason that said section is a legislative judgment and bill of pains and penalties, and therefore void under Section 10 of Article I of the United States Constitution providing that "no state shall . . . pass any bill of attainder." State v. Graves, 352 Mo. 1115; Cummings v. Missouri, 71 U.S. 277, 18 L.Ed. 356; Drehman v. Stifle, 75 U.S. 595, 19 L.Ed. 508; In re Yung Sing Tee, 36 F. 437; Cooley's Principles of Constitutional Law, pp. 311-312. (3) The court erred in dismissing this case as to each and all of the respondents, and in adjudging that they recover treble costs of and from appellant and have execution therefor, for the reason that in so doing the court exceeded the jurisdiction and authority conferred upon it by said section. Bank of Tupelo v. Stonum, 220 Mo. App. 152; Gordon v. Burris, 125 Mo. 39; Swing v. Furniture Co., 150 Mo. App. 574; State ex rel. v. Walbridge, 119 Mo. 383; Spurlock v. Railroad, 93 Mo. 13; Sec. 948, R.S. 1939; Throckmorton v. United States, 98 U.S. 61; De Louis v. Meek, 2 Green 55; Commerce Trust Co. v. Moffett, 345 Mo. 741; 25 C.J. 1208-1209; State v. Railroad, 253 Mo. 642; Richardson v. Palmer, 24 Mo. App. 480; Fiedler v. Construction Co., 162 Mo. App. 528; Meierhoffer v. Hansel, 294 Mo. 195; Wilson Co. v. Hartford Fire Ins. Co., 300 Mo. 1. (4) The court on December 30, 1944, erred in sustaining the alleged demurrers because the papers so entitled in Judge Terte's court and Judge Ridge's court were mere collateral attacks on the orders of Judge Buzard overruling motions to strike for the same alleged cause of misjoinder of parties plaintiff on May 27, 1942, and on the order of August 10, 1942, of Judge Buzard overruling the demurrer of respondent Kopp. Scott v. Rees, 300 Mo. 123; State ex rel. v. Ellison, 266 Mo. 423; Commercial Union of America v. Anglo-South American Bank, 10 F.2d 937; Appleton v. Smith, 1 Fed. Cas. 1075, No. 498; United States v. Biebusch, 1 F. 213; Cole Silver Mining Co. v. Virginia Gold Hill Water Co., 6 Fed. Cas. 72; Oglesby v. Attrill, 14 F. 214; Reynolds v. Iron Silver Mining Co., 33 F. 354; Wakelee v. Davis, 44 F. 532; Shreve v. Cheesman, 69 F. 785; Plattner Implement Co. v. International Harvester Co., 133 F. 376; State ex rel. v. Buckner, 207 Mo. App. 48; Bennett's Admr. v. Russell's Admr., 39 Mo. 152; 42 C.J. 519, sec. 177; Ruggles v. International Assn. Iron Workers, 331 Mo. 20; Graves v. Dakessian, 132 S.W.2d 972; Chadeloid Chemical Co. v. H.B. Chalmers Co., 242 F. 71; Kenny v. Kelleher, 63 Cal. 442; United Drug Co. v. Cordley, 239 Mass. 334; Carlisle v. Barnes, 183 N.Y. 272; State ex rel. McKittrick v. Wiley, 349 Mo. 239. (5) The court erred in that its orders and rulings on the alleged demurrers were based upon the issues as they stood prior to the amendment of the fifth amended petition on December 30, 1944; and in refusing to grant appellant a hearing upon the issues presented by the pleadings after the amendment was made, as required by the rules of the court; and in assigning the cause to Division 6, without notice as required by the rules of the court; and in rendering the erroneous judgment rendered without evidence, trial or hearing; all in violation of Section 1 of the XIVth Amendment to the Constitution of the United States. Ex parte Nelson, 251 Mo. 63; Sec. 948, R.S. 1939; Meierhoffer v. Hansel, 294 Mo. 195; State ex rel. Chick v. Evans, 273 Mo. 660. (6) The court erred in sustaining the alleged demurrers because the documents so entitled were not really demurrers but were either motions, speaking demurrers or answers, which waived all alleged grounds of demurrer and were collateral attacks on Judge Buzard's orders overruling pleadings for the same cause of misjoinder of parties plaintiff. Bliss on Code Pleading, sec. 404; Secs. 920, 922, 923, 948, R.S. 1939; McClurg v. Phillips, 49 Mo. 315; Pickering v. Mississippi Valley Natl. Tel. Co., 47 Mo. 457; Freeman on Judgments (5 Ed.), pp. 394, 691; Taber v. Wilson, 34 Mo. App. 89; Hanson v. Neal, 215 Mo. 256, 114 S.W. 1073; Cheely's Admr. v. Wells, 33 Mo. 106; Kammeyer v. City of Concordia, 352 Mo. 742; Kelly v. Hart, 61 Mo. 463; Mo. Pac. Ry. Co. v. Levy, 17 Mo. App. 501; Bennett v. Lohman, 292 Mo. 477; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 112, 226 S.W. 853; Pickering v. Tel. Co., 47 Mo. 457; Long v. Towl. 41 Mo. 398; Insurance Co. v. Eaves, 2 S.W.2d 193; Lanowah Inv. Co. v. John Hancock Life Ins. Co., 162 S.W.2d 307, 236 Mo. App. 1062; Baldridge v. Ryan, 260 S.W. 537; Pomeroy on Code Remedies (5 Ed.), p. 214; Powell v. Banks, 146 Mo. 620, 48 S.W. 664; Jones v. K.C.F.S. M. Ry. Co., 178 Mo. 528; Walker v. Lewis, 140 Mo. App. 26; State ex rel. Chick v. Davis, 273 Mo. 660; Meierhoffer v. Hansel, 294 Mo. 195; Pettingill v. Jones, 30 Mo. App. 280; Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185. (7) The circuit court was without jurisdiction to sustain the alleged separate demurrers of defendants (respondents) on the ground that there was a misjoinder of parties plaintiff, for the reason that the Code of Civil Procedure, Section 922, changed the common law rule on that question and omitted same as a ground for demurrer. Secs. 922, 923, R.S. 1939; Rainey v. Railway. 323 Mo. 662; State ex rel. Guion v. Miles, 210 Mo. 127; In re Shaw's Estate, 351 Mo. 1151; Sec. 3, Art. VI, p. 80, Laws 1849; Sec. 6, Chap. 128, R.S. 1855; Palmer v. Davis, 28 N.Y. 242; Brownson v. Gifford, 8 How. Pr. 389; Simar v. Canaday, 53 N.Y. 298; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Kammeyer v. City of Concordia, 179 S.W.2d 76; Webster v. Railway, 116 Mo. 114; State v. Hudson, 222 S.W. 1049; Three Way Land Co. v. Wells, 185 S.W.2d 795. (8) The appellant was properly joined in both capacities as joint plaintiffs in the circuit court, and said court erred in ruling that there was a misjoinder of parties plaintiff, and in sustaining the said demurrers based on said finding, and in then dismissing the case. Ravenscraft v. Pratt, 22 Kan. 20; Wilson v. Channell, 102 Kan. 793; Love v. White, 348 Mo. 640; Byers v. Weeks, 105 Mo. App. 72; Bristow v. Gage, 280 U.S. 327; Fall v. Eastin, 215 U.S. 1; Butler v. Lawson, 72 Mo. 227; Parker v. Simpson, 180 Mass. 334; Neiderberg v. Golluber, 162 S.W.2d 592; Griffith v. Bank, 147 F.2d 899; Young v. Boatmen's Natl. Bank, 171 S.W.2d 553; Myers v. Adler, 188 Mo. App. 607; Crenshaw v. Ullman, 113 Mo. 633; Burford v. Aldridge, 165 Mo. 419; Perry v. Roberts, 23 Mo. 221; Citizens Trust Co. v. Tindle, 272 Mo. 681; Wilson v. Hartford Fire Ins. Co., 300 Mo. 1; Hotchkiss v. Ogle, 153 Kan. 156; 24 C.J., sec. 2042; McLain v. Atlas Assur. Co., 67 S.W.2d 849; State ex rel. Utilities P. L. Co. v. Ryan, 337 Mo. 1180; Armour v. Roberts, 151 F. 846; Pollard's Lessee v. Hagen, 3 How. 212, 11 L.Ed. 570; Cowles on Treaties and Constitutional Law; Dred Scott v. Sandford, 19 How. 393; Secs. 18, 85, 86, 87, 88, 850, 851, 856, 857, 858, 1099, 1229, R.S. 1939; Commerce Trust Co. v. Moffett, 345 Mo. 741; Code Missouri 1849; Mertens v. Lowenberg, 69 Mo. 208; Quinn v. Leathem, A.C. 495; Aiken v. Wisconsin, 195 U.S. 194; Moffett v. Moffett, 131 Kan. 582; 12 C.J. 632; Chitty on Pleading and Parties to Actions (14 Am. Ed.) 64; Andrews Stephen's Pleading, sec. 28; Rockwood v. Crown Laundry Co., 178 S.W.2d 440, 352 Mo. 561; Neiderberg v. Golluber, 162 S.W.2d 592; Sections 60-410 and 60-412. R.S. Kan. 1935. (9) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. Commerce Trust Company never was administrator of Moffett Brothers estate for the reasons, amongst others the partnership administration statutes are in conflict with Section 10 of Article I, Constitution United States, prohibiting bills of pains and penalties; and with the treaty with France of 1803; and the involuntary servitude provision of the XIIIth Amendment, and the privileges and immunities, due process and equal protection provisions of Section 1 of the XIVth Amendment; and the overt acts of respondents in connection therewith rendered respondents liable to appellant in both capacities. Secs. 86, 87, 88, 645 R.S. 1939; Cummings v. Missouri, 4 Wall. 277; Treaty with France April 30, 1803; Boyd v. Nebraska, 143 U.S. 135, 36 L.Ed. 103; Boyd v. United States, 116 U.S. 616; Davis v. McColl, 179 Mo. App. 198; Act of Congress June 4, 1812, Laws Mo. Territory 1815, sec. 1, p. 32; Hagardine v. Gibbons, 114 Mo. 561; same case, 45 Mo. App. 460; Green's Admr. v. Virden, 22 Mo. 506; Ryland v. Banks, 151 Mo. 1; English Partnership Act of 1890, secs. 43, 22, 25; Uniform Partnership Act of Mass. 1922; State v. Graves, 352 Mo. 1115; Drehman v. Stifle, 75 U.S. 595, 19 L.Ed. 508; In re Yung Sing Tee, 36 F. 437; James Jewett v. Nixon, 21 Mo. 538; Weeks v. United States, 232 U.S. 383; Clark v. Mitchell, 64 Mo. 564; XIIIth Amend., U.S. Constitution; Sec. 1, XIVth Amend., U.S. Constitution; State ex rel. v. Bird, 253 Mo. 569; Dorman v. State, 34 Ala. 216; Davidson v. New Orleans, 96 U.S. 97; Taylor on Due Process of Law; Mo. Pac. Ry. Co. v. Tucker, 230 U.S. 340; Woerner on American Law of Administration (3 Ed.), secs. 129, 452; Wyers v. Arnold, 347 Mo. 413; Pollard's Lessee v. Hagen, 3 How, 212; Fifth Amend., U.S. Constitution; Maxwell v. Dow. 176 U.S. 581; Livingston v. Moore, 7 Peters, 469; Barron v. Baltimore, 7 Peters, 242; Dred Scott v. Sandford, 19 How. 393; Laws of Missouri, published February 15, 1839; Sec. 4 (1b), 30 of Art. II. Mo. Constitution; Sec. 88, R.S. 1939; Sec. 16, Art. II, Mo. Constitution; Art. III, Treaty of Paris 1803; Watson v. Mercer, 8 Pet 88, 8 L.Ed. 876; Board of Commissioners v. Peters, 253 Mo. 1. (10) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. The misconduct of Mrs. Weede and the accountants in making initial false entries, adopted by the other respondents, and knowingly embodied by them in Commerce Trust Company's Exhibit No. 8, wherein said accountants and Mrs. Weede violated their fiduciary obligation to Thomas S. Moffett and appellant directly in favor of John Moffett, and indirectly in favor of Mrs. Weede, rendered all respondents liable to appellant in both capacities. Dantzler Lbr. Export Co. v. Columbia Casualty Co., 156 So. 116; Ultramares Corp. v. Touche, 174 N.E. 441, 225 N.Y. 170; Maryland Casualty Co. v. Cook, 35 F. Supp. 160; State Street Trust Co. v. Erust. 15 N.E.2d 416; Kramer v. Joseph P. Day, Inc., 26 N.Y. Supp.2d 734; National Surety Corp. v. Lybrand, 9 N.Y. Supp.2d 554; Otis Co. v. Grimes, 48 P.2d 788; Jaeger Mfg. Co. v. Maryland Cas. Co., 300 N.W. 680, 231 Iowa 151; East Grand Forks v. Steele, 121 Minn. 296, 141 N.W. 181; Wangerin v. Wisconsin State Board of Accountancy, 223 Wis. 179, 270 N.W. 57; Board of County Commissioners of Allen County v. Baker, 102 P.2d 1006, 152 Kan. 164; 12 C.J., sec. 181, p. 612; State ex rel. v. Peoples Ice Co., 246 Mo. 168; Kennish v. Safford and Ray, 193 Mo. App. 362; State ex inf. v. St. Louis Union Trust Co., 335 Mo. 845; Clark v. Moffett, 136 Kan. 711; United States Pipe Foundry Co. v. City of Waco, 108 S.W.2d 432; Maryland Casualty Co. v. Cook, 35 F. Supp. 160. (11) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. Commerce Trust Company, Mrs. Weede, appellant and the ancillary administratrix of the estate of Thomas S. Moffett, in their pleadings in the partition-accounting suit, alleged that the income tax report verified by John and Thomas S. Moffett, showing that Moffett Brothers partnership estate was not indebted to John Moffett was found to be true by the Commissioner of Internal Revenue, by the District Court and by the Supreme Court of Kansas, which findings deprived said district court of jurisdiction to render, and the Supreme Court of jurisdiction to affirm, the judgment against Moffett Brothers partnership estate; and the wrongful acts of respondents in connection therewith rendered them liable to appellant in both capacities. Sheldon v. Pruessner, 52 Kan. 579; Powers v. Scharling, 76 Kan. 855; Underwood v. Greenless, 131 Kan. 312; Antrim v. International Life Ins. Co., 128 Kan. 65; Railroad v. Morris, 7 Kan. 210; Bledsoe v. Seaman, 77 Kan. 679; United States v. Kaufman, 96 U.S. 570; Lisansky v. United States, 31 F.2d 846; Shinyu Noro v. United States, 148 F.2d 696; United States v. Scharton, 285 U.S. 518; Sec. 1266, Title 26 U.S.C. Supp. 5. (12) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. The allegations to the effect that the judgments of this court, the circuit court and the probate court in the Howard fee case tender an issue as to the res judicata effect of said judgments, both on the merits and the alleged misjoinder of parties plaintiff; and these allegations, admitted as they are by the alleged demurrers, render the respondents liable to appellant in both capacities. Hickerson v. City of Mexico, 58 Mo. 61; State ex rel. v. Alsup, 91 Mo. 172; State v. Hann, 30 S.W.2d 15; Christy v. Great Northern Life Ins. Co., 181 S.W.2d 663; United States Fidelity Co. v. McCarty, 33 F. 27; State ex inf. v. Mo. Pub. Serv. Corp., 351 Mo. 961; Dickey v. Heim, 48 Mo. App. 114; United States v. Oppenheimer, 242 U.S. 85; In re Lewis, 152 Kan. 193; 2 Wharton on Criminal Law, sec. 1381, p. 1837; Commonwealth v. Dascom, 111 Mass. 404; 3 Greenleaf on Evidence, p. 45; State v. Smith, 47 P. 541; Richardson v. State, 5 S.W.2d 141; Kelley v. Allin, 99 N.E. 273; United States v. De Angelo, 138 F. 466; 2 Freeman on Judgments (5 Ed.), sec. 629; Treinies v. Sunshine Mining Co., 308 U.S. 66; Perkins v. Mining Co., 132 P.2d 70. (13) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. The Kansas court, in rendering the judgment referred to in respondents' alleged demurrers, arrogated the jurisdiction of a Missouri probate court to itself, and disregarded the fundamental principle that a court of a sister state is without jurisdiction to render a judgment against an administrator not having assets and not domiciled in the sister state. And the overt acts of respondents as alleged in the petition render respondents liable to appellant in both capacities. In re Estate of Thompson v. Coyle Co., 339 Mo. 410; Emmons v. Gordon, 140 Mo. 490; Helme v. Buckalew, 229 N.Y. 668; McMaster v. Gould, 240 N.Y. 379; Williams v. North Carolina, 89 L.Ed. 1123; Natl. Bank of Topeka v. Mitchell, 154 Kan. 276; Brown v. Fletcher's Estate, 210 U.S. 82, 52 L.Ed. 966; Rose v. Himely, 52 L.Ed. 970; Bank of Seneca v. Morrison, 200 Mo. App. 169. (14) The court erred in sustaining the alleged demurrers because there was no misjoinder of parties plaintiff, and the injury resulting from the overt acts damaged appellant's joint interest in both capacities. Said interest resulted from her husband's will naming her sole legatee and executrix, and from the joint industry of appellant and her husband; and for the loss occasioned by said acts appellant has a joint right to recover in this action in both capacities. Fall v. Eastin, 215 U.S. 1; Darrow v. Briggs, 261 Mo. l.c. 274; Section 645, 646, 851, 3679, 4632, 4633, R.S. 1939; State v. Dalton, 134 Mo. App. 517; United States v. Throckmorton, 98 U.S. 61; State v. Bacon, 61 A. 653; 12 C.J. 583; Randall v. Lonstorf, 126 Wis. 147, 105 N.W. 663, 3 L.R.A. (N.S.) 470, 5 Ann. Cas. 371; Sec. 43, Title 8 U.S.C.A.; Huckleberry v. Mo. Pac. R. Co., 26 S.W.2d 980, 324 Mo. 1025; Title 18 U.S.C.A.; Kellogg v. Sowerby, 190 N.Y. 370, 83 N.E. 47; Lobel v. Trade Bank, 229 N.Y.S. 778; Judevine v. Benzies-Montayne Fuel Warehouse Co., 269 N.W. 295; Byers v. McAnley, 149 U.S. 871; Screws v. United States, 89 L.Ed. 1009; Culp v. United States, 131 F.2d 93; 12 C.J., sec. 105; Collins v. Cronin, 117 Pa. 35; Aronson v. Ricker, 185 Mo. App. 528; Aikens v. Wisconsin, 195 U.S. 194; Quinn v. Leathem. A.C. 495; Schenck case, 249 U.S. 47, 63 L.Ed. 470; Coke's Institutes 1. Part 2, p. 48; Part 4, Chap. 6; Sec. 4, Art. II. Mo. Constitution; State ex rel. v. Bird, 253 Mo. 569; Robinson v. Johnson, 50 F. Supp. 774; Hall v. Johnson, 91 F. 363; Pile v. Kansas, 317 U.S. 213; Mooney v. Holahan, 294 U.S. 103; Melton v. Commonwealth, 170 S.W. 37; White v. McCoy Land Co., 87 S.W.2d 672, 229 Mo. App. 1019; White v. Scarritt, 341 Mo. 1004; White v. McCoy Land Co., 101 S.W.2d 763; In re Conrad, 340 Mo. 582; Nye v. United States, 137 F.2d 73; Nye v. United States, 113 F.2d 1006; Nye v. United States, 313 U.S. 33; Drake v. Public Service Co., 333 Mo. 520, 63 S.W.2d 75. (15) The court erred in sustaining the alleged demurrers for misjoinder of parties plaintiff because the assets (real and personal) of the estates were so intermingled that appellant was a proper party plaintiff in both capacities. The Missouri Constitution, Sections 34 and 35, Article VI, created a Probate Court consisting of one judge, and the statute of 1911 purporting to authorize special probate judges in addition to said one judge is void because in conflict with said sections, and also with Section 18 of Article II of the Missouri Constitution. There could not be a special probate judge, nor could his acts be valid under the de facto rule, for the reason that said rule is a common law rule and was in direct conflict with the Constitution; and the overt acts alleged render respondents liable to appellant in both capacities. Sec. 86, R.S. 1939; Laws 1911, pp. 88, 89; Sec. 645, R.S. 1939; State Farm Auto Ins. Co. v. Duel, 65 S.Ct. 573. (16) The court erred in sustaining the alleged demurrers for the reason that Commerce Trust Company, as alleged Missouri administrator of Moffett Brothers partnership estate, wrongfully went into a Kansas court to have a judgment rendered against itself, with the aid of the other respondents, notwithstanding it knew that said Kansas court had no jurisdiction to render a judgment against it which would authorize it to give away the assets of said estate of which it had no possession in Kansas in purported satisfaction of the fraudulent judgment. In the Matter of Partnership Estate of Henry Ames Co., 52 Mo. 290.

Hurding, Murphy Tucker and Walter A. Raymond for respondent Helen Weede.

(1) Pleadings tested by demurrer. Blaine v. George Knapp Co., 140 Mo. 241, 41 S.W. 787; Overeash v. Yellow Transit Co., 352 Mo. 993, 180 S.W.2d 678; Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543; Chouteau v. St. Louis, 331 Mo. 781, 55 S.W.2d 299; State ex rel. Gregory v. Henderson, 230 Mo. App. 1, 88 S.W.2d 893; Davidson v. I.M. Davidson Real Estate Inv. Co., 226 Mo. 1, 125 S.W. 1143; Sisk v. Wilkinson, 305 Mo. 328, 265 S.W. 536; Koewing v. Green County B. L. Assn. of Springfield, 327 Mo. 680, 38 S.W.2d 40; Springer v. Security Natl. Bank Savs. Trust Co., 175 S.W.2d 797; Mack v. Eysell, 332 Mo. 671, 59 S.W.2d 1049; State ex rel. v. Horner, 187 S.W.2d 976. (2) The cause of action here sought to be alleged constitutes collateral attacks on final judgments of the Kansas and Federal Courts all ruled adversely to appellants. Such alleged cause of action attacking our courts and the use of legal process belong to a class not favored by the courts but hedged about by many stringent limitations. Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325, 66 S.W. 933; State ex rel. Conran v. Duncan, 333 Mo. 673, 63 S.W.2d 135; Edwards v. Harrison, 236 S.W. 328; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; Higgins v. Knickermeyer-Fleer Realty Inv. Co., 335 Mo. 1010, 74 S.W.2d 805; Northcutt v. McKibben, 236 Mo. App. 605, 159 S.W.2d 699. (3) Terte and Wright judgments not before this court for review. Voorhees v. Exposition Co., 243 Mo. 418, 147 S.W. 783; Coleman v. Apple, 298 F. 718; Foltz v. Ry. Co., 60 F. 316; Erickson v. United States, 44 S.Ct. 310; Boder v. Reller, 190 S.W.2d 213. (4) Misjoinder of parties plaintiff ground for demurrer. Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d l.c. 127; Akins v. Hicks, 109 Mo. App. 95, 83 S.W. 75; Doerr-Engel, etc., v. Tide Water Oil Co., 342 Mo. 1141, 119 S.W.2d 402; Niederberg v. Golluber, 162 S.W.2d 592; Jenkins v. Wiley, 300 Mo. 110, 254 S.W. 94; Anderson v. McPike, 41 Mo. App. 328; Kuh v. Garvin, 125 Mo. 547, 28 S.W. 847; Merritt v. Kansas City, 227 Mo. App. 253, 46 S.W. 275. (5) Counsel's self-serving statements no part of the record. Watkins v. Co., 24 F.2d 370. (6) After sustaining third demurrer, assignment of case to Division 6 proper. State ex rel. v. Johnson, 272 S.W. 928; State ex rel. Burleight v. Miller, 266 S.W. 985; State ex rel. Chandler v. Allen, 235 Mo. 298, 138 S.W. 339; Hargadine, etc., v. Garesche, 227 S.W. 824. (7) The Kansas judgments were rendered by courts having jurisdiction of the parties and the subject matter; therefore, they are not subject to collateral attack. Moffett v. Moffett, 131 Kan. 582, 292 P. 947. Id., 131 Kan. 546, 292 P. 942; Clark v. Andrews, 136 Kan. 23, 13 P.2d 294; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; Sec. 1092, R.S. 1939. (8) This court has the right to examine plaintiff's abstract of the record in Moffett Brothers, etc., v. Moffett, etc. 345 Mo. 741, 137 S.W.2d 507. Knorp v. Thompson, 175 S.W.2d l.c. 889, 352 Mo. 44; State ex rel. Ponath v. Hamilton, 240 S.W. 445; Custer v. Kroeger, 280 S.W. 1035, 313 Mo. 130; Sabol v. St. Louis County, 31 S.W.2d 1041; State ex rel. Larson v. Mathison, 261 S.W. 335; Runnels v. Lasswell, 272 S.W. 1032; Ross v. Childs, 130 S.W.2d 524, 344 Mo. 1084. (9) "Due process" defined. Hallinger v. Davis, 146 U.S. l.c. 320; Leeper v. Texas, 139 U.S. 462; In re Converse, 137 U.S. 624; McManus v. Burrows, 217 S.W. 512, 280 Mo. 327; Mitchell v. Greenough, 100 F.2d l.c. 187. (10) Potential existence theory exploded. State ex rel. v. Kansas City, 310 Mo. 542, 276 S.W. 389; State ex rel. v. Dirckx, 211 Mo. 568, 111 S.W. 1; State ex rel. Brunjes v. Bockelman, 240 S.W. 209. (11) The Kansas judgments cannot be attacked collaterally but are final and binding on plaintiff and all of the parties. Clark v. Moffett, 136 Kan. 711, 18 P.2d 555, 290 U.S. 602, 290 U.S. 642; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431, 298 U.S. 675; Moffett v. Moffett, 131 Kan. 582, 292 1107 P. 947, Id., 131 Kan. 546, 292 P. 942, 283 U.S. 826; Clark v. Andrews, 136 Kan. 23, 13 P.2d 294; Moffett v. Moffett, 137 S.W.2d 507, 345 Mo. 741. (12) Jurisdiction is power to decide the case either way as the merits may require. Coleman v. Apple, 298 F. 718; Foltz v. Ry., 60 F. 316; Erickson v. United States, 44 S.Ct. 310, 21 C.J.S., p. 38, secs. 26, 27; Metzger v. Turner, 158 P.2d 701; Klancher v. Anderson, 158 P.2d 923; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220; Winning v. Brown, 340 Mo. 178, 100 S.W.2d 303. (13) It is immaterial that plaintiff at the time of her appearance was ignorant of the alleged irregularities of notice. 3 Am. Jur., sec. 35, p. 805; Fears v. Riley, 148 Mo. l.c. 60, 49 S.W. 836; Biebinger v. Taylor, 64 Mo. 63. (14) Plaintiff having filed suit in the Federal District Court of Kansas, cannot now say that that court did not have jurisdiction over her or over the subject matter which was her bill in equity and of which plaintiff's present petition is a rehash. 31 Am. Jur., p. 179, sec. 580; Van Fleet's Collateral Attack on Judicial Proceedings, p. 14, sec. 16; Moffett v. Moffett, 131 Kan. 582, 292 P. 947; Clark v. Moffett, 136 Kan. 711, 18 P. 555; Authenrith v. Hartley, 176 S.W.2d 547; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F. Supp. 431; In re Thompson Estate, 97 S.W.2d 93, 339 Mo. 410; 34 C.J. 1160, note 59; Chicago, etc., v. Anglo-American, etc., 46 F. 584; Lindsay v. Evans, 174 S.W.2d 390; Jegglin v. Orr, 29 S.W.2d 721, 224 Mo. App. 773; Keller v. Keller, 179 S.W.2d 728, 352 Mo. 877; Williams v. State of N.C., 65 S.Ct. 1092; Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3; Baldwin v. Iowa, etc., Assn., 283 U.S. 522, 51 S.Ct. 517; Am. Surety Co. v. Baldwin, 287 U.S. 98, 53 S.Ct. 98; Corliss v. Davidson, 152 Kan. 327, 103 P.2d 781; Perkins v. Benguet Mining Co., 55 C.A.2d 720, 132 P.2d 70; Pet. Hearing Sup. Ct. Cal. Denied, 55 Cal.App.2d 775, 132 P.2d 102; Cert. Denied, 319 U.S. 774, 63 S.Ct. 1435; Carter v. Christie, 57 Kan. 492; Knox v. Knox, 87 Kan. 381; Ellis v. Starr Piano Co., 49 S.W.2d 1078, 226 Mo. App. 1209; Hall v. Wilder, 293 S.W. 760, 316 Mo. 812; Chamberlain v. Chamberlain, 194 A.L.R. 1183, 362 Ill. 588, 104 A.L.R. 1187; Vulcan Steam Shovel Co. v. Cobb, 199 S.W. 448; Scott v. Vulcan, 31 Okla. 334, 122 P. 186; Leichty v. K.C. Bridge Co., 190 S.W.2d 201; 1945, U.S. Const., Sec. 1, Art. 4; Hallauer v. Lackey, 188 S.W.2d 30; Kilbourn v. Kilbourn, 190 S.W.2d 206. (15) The petition claiming damages on account of alleged conspiracy resulting in the judgment of Karl Miller, Judge of the District Court of Comanche County, Kansas, as set out in paragraph 44, commencing on page 319 of the petition, shows on its face that the court had jurisdiction of the parties and the subject matter, that the court had the right and duty to decide the issues complained of that they were decided after a hearing in which all parties participated and that, therefore, the judgment is binding and res judicata. 34 C.J., p. 329, sec. 549; Metzger v. Turner, 158 P.2d 701; Hill v. Walker, 154 A.L.R. 814; Ry. v. Mirrielees, 182 Mo. 126, 81 S.W. 437; Shelbina v. Parker, 58 Mo. 327. (16) The accounting suit was legally revived. Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; Moffett v. Moffett, 131 Kan. 582; Howard Fee Case. 137 S.W.2d 507, 345 Mo. 741. (17) Plaintiff entered her appearance in the accounting suit. 6 C.J.S., sec. 19, p. 60; Selders v. Boyle, 5 Kan. App. 451; 3 Am. Jur., sec. 35, p. 805; Dye v. Ry., 101 Kan. 666; Bury v. Conklin, 23 Kan. 460; Anglo-Am., etc., v. Turner Casing Co., 34 Kan. 340; Burdett v. Corgan, 26 Kan. 102; Matthies v. Co., 138 Kan. 764, 28 P.2d 754; Kipp v. Carlson, 148 Kan. 657, 84 P.2d 899; Lieuallen v. Young, 115 Okla. 153, 241 P. 342. (18) Plaintiff's ignorance of defects in process immaterial 3 Am. Jur., sec. 35, p. 805. Notice valid at time of revivor. Smith v. Henry, 155 Kan. 283, 124 P.2d 448; Brian v. Jeffry, 5 Kan. App. 98, 48 P. 875; Kothman v. Skaggs, 29 Kan. 5. (19) The petition charges that neither the District Court nor the Supreme Court had jurisdiction of the subject matter; that the answers filed deprived the court of jurisdiction. Said charge was demurrable for the reason that the trial court had jurisdiction of the parties and the subject matter; that the question of jurisdiction was determined by him and is binding on all parties; that plaintiff sought relief by appeal to the Supreme Court of Kansas, Moffett v. Moffett, 131 Kan. 582, which said jurisdiction of the parties and the subject matter and the issues were determined against plaintiff and are res judicata. Coleman v. Apple, 298 F. 718; Moffett v. Moffett, 131 Kan. 582, 292 P. 947; Moffett v. Robbins, 14 F. Supp. 602; Hazen v. Webb, 65 Kan. 41, 42, 43, 68 P. 1096; Appel v. Smith, 106 Kan. 717, 190 P. 8; Apple v. Smith, 105 Kan. 737, 185 P. 903; 1 C.J., p. 616; Sawin v. Osborn, 87 Kan. 831, 126 P. 1074; Rice Adams Corp. v. Lathrop, 278 U.S. 509; Liberty Oil Co. v. Condon Natl. Bank, 260 U.S. 235; Torbert v. Jeffrey, 161 Mo. 645, 61 S.W. 823; Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 732; Shaffer v. Carter, 252 U.S. 37; Howard Fee Case, 137 S.W.2d 507, 345 Mo. 741; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555. (20) An amended petition may not set up any cause of action which had not accrued when the original petition was filed. Jegglin v. Orr, 29 S.W.2d 721; Lindsay v. Evans, 174 S.W.2d 390. (21) The petition shows on its face that there was a misjoinder of parties plaintiff; that plaintiff cannot join herself personally with herself as executrix in an action for damages for libel. Vogel v. Bushnell, 203 Mo. App. 623; Wright v. Afro-American Co., 52 A.L.R. 908; Adams v. Stockton, 133 S.W.2d 687; McClure v. Stretch, 147 P.2d 935. (22) The petition shows on its face that only a portion of the statement complained of in the Weede reply brief appears in the petition; that Finding of Fact No. 24 and Request No. 13 for modification thereof which constitutes the heart of the statement is omitted. Warren v. Pulitzer Co., 78 S.W.2d 404; Davis v. Assn., 323 Mo. 695, 19 S.W.2d 650; State ex rel. v. Cox, 318 Mo. 112, 298 S.W. 837. (23) The petition shows on its face that said brief was written in reply to arguments made by attorneys for plaintiff and were related to the issues of fraud, perjury, etc., before the court, and the same was not libelous. Plaintiff's abstract of the record in Howard Fee case, 345 Mo. 741, is before the court for consideration. Knorp v. Thompson, 175 S.W.2d 889; Clark v. Moffett, 136 Kan. 711; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; State ex rel. Ponath v. Hamilton, etc., 240 S.W. 445; State ex rel. Larson v. Mathieson, 261 S.W. 335; Ross v. Childs, 130 S.W.2d 524; Custer v. Kroeger, 280 S.W. 1035; Keaton v. Jorndt, 168 S.W. 734, 259 Mo. l.c. 189; Meyer v. Goldsmith, 196 S.W. l.c. 746; Saybol v. Co., 31 S.W.2d 1041. (24) The matters complained of were neither libelous nor did they pervert or obstruct justice. (25) The petition shows on its face that the various briefs filed by the various defendants were not joint but separate; that the charge that defendants conspired to file the Weede brief is a mere conclusion of the pleader and is contradicted by the petition itself and that the demurrers filed do not admit such charge of conspiracy. State ex rel. v. Horner, 187 S.W.2d 976; Weitzman v. Weitzman, 156 S.W.2d 906; Seegers v. Marx, 66 S.W.2d 526; Dean v. Kirkland, 23 N.E.2d 180, 301 Ill. App. 495; Medich v. Stippee, 73 S.W.2d 998; Springer v. Bank, 175 S.W.2d 797; Odom v. Langston, 173 S.W.2d 826; Stephens v. Mound City, 246 S.W. l.c. 42; Amber v. Choteau, 107 U.S. 586; Losch v. Pickett, 36 Kan. l.c. 222; Hughes v. State Board, 345 Mo. 995; Farm Home v. Armstrong, 337 Mo. 349; Searcy v. Clay County, 176 Mo. 493. (26) The decision of Judge Wright was not appealed from. The petition charges neither intrinsic nor extrinsic fraud practiced on him. His opinion is not before the court for review. Voorhees v. Co., 243 Mo. 418, 147 S.W. 783. (27) The trial court properly sustained the separate demurrer of defendant Helen Weede to plaintiffs' Fifth Amended Petition on the ground there was a misjoinder of parties plaintiff. Riddick v. Walsh, 15 Mo. 519; Farmers Traders Bank v. Kendrick, 341 Mo. 571, 108 S.W.2d 62; Niederberg v. Golluber, 162 S.W.2d 592; In re Rohde's Estate, 157 S.W.2d 527; Beger v. Meara, 351 Mo. 64, 171 S.W.2d 650; Elam v. Bond, 169 Mo. App. 584; Cook v. McCoy, 118 S.W.2d 1043; Armor v. Frey, 253 Mo. 447, 161 S.W. 829; Troll v. St. Louis, 257 Mo. 626, 168 S.W. 167; Sec. 94, R.S. 1939; In re Helm's Estate, 136 S.W.2d 421; Clow's Estate v. Clow, 167 S.W.2d 903; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; St. Paul Kansas City Short Line R. Co. v. United States Fidelity Guaranty Co., 231 Mo. App. 613, 105 S.W.2d 14; Perry v. Roberts, 23 Mo. 221; Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S.W.2d 440; Bovard v. Jones, 142 S.W.2d l.c. 17; Darrow v. Briggs, 169 S.W. 118, 261 Mo. 244; Bowman et al. v. Wohlke, 166 Cal. 121, 135 P. 37; Mertens v. Lowenberg, 69 Mo. 208; 24 C.J., sec. 2055, p. 818; Yates v. Kimmel, 5 Mo. 87; Webster v. Joplin Water Works Co., 352 Mo. 327, 177 S.W.2d 447; Repetto v. Walton, 313 Mo. 182, 281 S.W. 411. (28) Section 948, R.S. Mo. 1939, is not a bill of pains and penalties condemned by Section 10 of Article I of the United States Constitution. Black's Law Dictionary, Second Edition, Definition "Bill of Pains and Penalties;" 16 C.J.S., 902, sec. 452; 2 Am. Jur., p. 1175, sec. 347; Gordon v. Burris, 125 Mo. 39, 28 S.W. 191; State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632. (29) The judgment dismissing this case and assessing treble costs was the only judgment the court could enter under the law and the court committed no error in entering said judgment. Voorhees v. Louisiana Purchase Exposition Co., 243 Mo. 418, 147 S.W. 783; Bryan v. Louisville N.R. Co., 292 Mo. 535, 238 S.W. 484; Heman v. Glann, 129 Mo. 325, 31 S.W. 589; Tobin v. Bell Telephone Co., 199 S.W. 952; Sidway v. Mo. Land Live Stock Co., 197 Mo. 359, 94 S.W. 855; State ex rel. Jones v. Howe Scale Co. of Illinois, 253 Mo. 63, 161 S.W. 789; State ex rel. Lay v. Arthur Greenfield, Inc., 205 S.W. 619; State on inf. McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677; Kopp v. Moffett, 167 S.W.2d 87; State ex rel. L.J. Mueller Furnace Co. v. Buckner, 207 Mo. App. 48, 229 S.W. 392; State ex rel. Lunsford v. Landon, 304 Mo. 654. 265 S.W. 529; Kinsella v. Kinsella, 183 S.W.2d 905; Secs. 922, 926, R.S. 1939; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Ewing v. Vernon County, 216 Mo. 681, 116 S.W. 518; Hubbard v. Slavens, 218 Mo. 598, 117 S.W. 1104; Shohoney v. Quincy, O. K.R. Co., 231 Mo. 131, 132 S.W. 1059; Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118; 24 C.J., p. 911, sec. 2269; 34 C.J.S., p. 927, sec. 820; Johnson v. Frank, 354 Mo. 767; Buder v. Reller, 190 S.W.2d 213; Nye v. United States Fid. Guar. Co., 225 Mo. App. 593, 37 S.W.2d 988; State ex rel. Gnekow v. United States Fid. Guar. Co., 349 Mo. 528, 163 S.W.2d 86; Stone v. Wandling, 307 Mo. 160, 270 S.W. 315; Shaffer v. Chicago, R.I. P. Ry. Co., 300 Mo. 477, 254 S.W. 257. (30) Judge Ridge properly sustained the Weede demurrer on the First and Fifteenth grounds. The Weede demurrer was not a collateral attack on the orders of Judge Buzard. Judge Buzard ruled on certain motions which were not demurrers. They were not intended to be demurrers. They were not treated as demurrers by anybody. On the other hand, they were treated as motions. Defendant Weede had no connection with or interest in the Kopp demurrers. Bryan v. Louisville N.R. Co., 292 Mo. 535, 238 S.W. 484; Heman v. Glann, 129 Mo. 325, 31 S.W. 589; Tobin v. Bell Tele. Co., 199 S.W. 952; Gray v. Nations, 224 Mo. App. 27, 23 1111 S.W.2d 1080; Davis v. Chicago E.E. Ry. Co., 338 Mo. 1248, 94 S.W.2d 370; Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626; Kinsella v. Kinsella, 183 S.W.2d 905; State ex rel. Burleigh v. Miller, 266 S.W. 985; State ex rel. MacNish v. Landwehr, 332 Mo. 622, 60 S.W.2d 4; In re Condemnation of Land in Kansas City, 188 Mo. App. 567, 176 S.W. 529; State ex rel. Chandler v. Allen, 235 Mo. 298, 138 S.W. 339, l.c. 341; Sec. 2118, R.S. 1939; State v. Lehman, 182 Mo. 424, 81 S.W. 1118; Chance v. Franke, 348 Mo. 402, 153 S.W.2d 378; Graves v. Davidson, 334 Mo. 882, 68 S.W.2d 711; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190. (31) The court committed no error in assigning this cause to his own division and entering judgment without further hearing. A third petition having been held wholly insufficient it was mandatory, under Section 948, that judgment be entered against the plaintiffs. Sec. 948, R.S. 1939; Everett v. Glenn, 225 Mo. App. 921, 35 S.W.2d 652; Gordon v. Burris, 125 Mo. 39, 28 S.W. 191; Johnson v. United Rys., 227 Mo. 431, 127 S.W. 63; Meierhoffer v. Hansell, 294 Mo. 195, 243 S.W. 131; State ex rel. Clinton Const. Co. v. Johnson. 272 S.W. 928; State ex rel. Chandler v. Allen, 235 Mo. 298, 138 S.W. 339; Hargadine-McKittrick Dry Goods Co. v. Garesche, 227 S.W. 824; State ex rel. Burleigh v. Miller, 266 S.W. 985; In re Waters' Estate, 153 S.W.2d 774; Slaughter v. Wright, 135 F.2d 613. (32) The separate demurrers were sufficient in form and were properly sustained. Plaintiffs' Fifth Amended Petition had not previously been attacked by demurrer or motion and objections to rulings on motions and demurrers to previous petitions had been waived and abandoned by plaintiffs when they filed subsequent amended petitions. Stewart v. City of Springfield, 350 Mo. 234, 165 S.W.2d 626; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 112, 226 S.W. 853; Bennett v. Metropolitan Pub. Co., 148 S.W.2d 109; Rogers v. Shawnee Fire Ins. Co. of Topeka, Kan., 132 Mo. App. 275, 111 S.W. 592; Stonemets v. Head, 248 Mo. 243, 154 S.W. 108; Saxbury v. Coons, 98 S.W.2d 662; Secs. 853, 953, R.S. 1939; State ex rel. Kansas City L. P. Co. v. Trimble, 262 S.W. 357; Niederberg v. Golluber, 162 S.W.2d 592; Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S.W.2d 440; Hallen v. Smith, 305 Mo. 157, 264 S.W. 665; Yore v. Yore, 240 Mo. 451, 144 S.W. 847; Peters v. McDonough, 327 Mo. 487, 37 S.W.2d 530; Fischman-Harris Realty Co. v. Kleine, 82 S.W.2d 605; State v. Burns, 312 Mo. 673, 280 S.W. 1026; McCollum v. Shubert. 185 S.W.2d 48; Scott v. Alton Banking Trust Co., 175 S.W. 920; Hartvedt v. Harpst, 173 S.W.2d 65; Essen v. Adams, 342 Mo. 1196, 119 S.W.2d 773; National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203, 123 S.W. 561. (33) By failing to give bond as required by Section 86, R.S. Mo. 1939, Thomas S. Moffett forfeited his right to administer on the estate of Moffett Brothers and the Commerce Trust Company was legally appointed administrator of said estate. Hargadine v. Gibbons, 114 Mo. 561, 21 S.W. 726; State ex rel. Richardson v. Withrow, 141 Mo. 69, 41 S.W. 980; In re Harr Harr's Estate, 224 Mo. App. 6, 22 S.W.2d 209; Groves v. Aegerter, 226 Mo. App. 128, 42 S.W.2d 974; State ex rel. McKittrick v. Bair, 333 Mo. 1. 63 S.W.2d 64; Spurlock v. Burnett, 183 Mo. 524, 81 S.W. 1221; Henderson v. Calhoun, 183 S.W. 584; Ferguson v. Gentry, 206 Mo. 189, 104 S.W. 104; Bartlett v. Ball, 142 Mo. 28, 43 S.W. 783; Kingshighway Presbyterian Church v. Sun Realty Co., 324 Mo. 510, 24 S.W.2d 108; Sheehan v. First Natl. Bank in St. Louis, 346 Mo. 227, 140 S.W.2d 1; United States v. Brady, 133 F.2d 476; Sanderlin v. Smyth. 4 Cir., 138 F.2d 729; Berry v. Majestic Milling Co., 304 Mo. 292, 263 S.W. 406; Sutton v. Anderson, 326 Mo. 304, 31 S.W.2d 1026; State ex rel. Wallach v. Oehler, 348 Mo. 655, 154 S.W.2d 781; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Secs. 85, 88, R.S. 1939; In re Knaup, 144 Mo. 653, 46 S.W. 151; James Jewett v. Dixon. 21 Mo. 538; Clark v. Andrews, 136 Kan. 23, 13 P.2d 294; General Statutes of Kansas for 1935. Chap. 22. Art. 4, Secs. 22-401 to 22-409; Glass Co. v. Ludlum. S. Kan, 40; Ballinger v. Redhead, 1 Kan. App. 434, 440, 40 P. 828; Secs. 22-407 and 408, R.S. Kansas 1935. (34) Appellants claim that the Missouri Partnership Administration Statutes violate the terms of the Treaty of April 30, 1803, between the United States and France and hence are invalid. 52 Am. Jur., p. 824; Art. 3 of Treaty of April 30, 1803; Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924; Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644; United States v. Pink, 315 U.S. 203, 62 S.Ct. 552; Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 58 S.Ct. 785; 52 Am. Jur. 818, sec. 21. (35) Plaintiffs' petition and the record in the Howard Fee case disprove the charge that initial false entries were made in the new books set up as of January 1, 1924, or embodied in Commerce Trust Company's Exhibit No. 8. Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; Wabash R. Co. v. Mirrielees, 182 Mo. 126, 81 S.W. 437; First Natl. Bank Trust Co. v. Bowman, 322 Mo. 654, 15 S.W.2d 842; Scott v. Taylor, 231 Mo. 654, 132 S.W. 1149; Shohoney v. Quiney, O. K.C.R. Co., 231 Mo. 131, 132 S.W. 1059. (36) Plaintiffs' Point XI deals with the matter of internal revenue and, in round numbers, charges that on account of alleged fraud perpetrated by the defendants in relation to said internal tax returns, both the District Court of Kansas and the Supreme Court of Kansas were deprived of jurisdiction and their judgments are void. The issues relating to said alleged fraud were tried and determined in the case of Clark, etc., v. Moffett, etc., 136 Kan. l.c., 718, 719, and is, therefore, res judicata. Clark v. Moffett, 136 Kan. 711, 18 P.2d 555, 290 U.S. 602, 642; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431, 298 U.S. 675; Coleman v. Apple, 298 F. 718; 15 C.J., sec. 26; 21 C.J.S., sec. 27; Metzger v. Turner, 158 P.2d 701; Clancher v. Anderson, 158 P.2d 923; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; 60-F, p. 84, 1945, U.S. Master Tax Guide; Vol. 2, C.C.H. Inc., Federal Tax Service, sec. 1171-28, p. 4310, sec. 1173, p. 4315. (37) The Howard Fee case, 345 Mo. 741, 137 S.W.2d 507, is wholly immaterial and not res adjudicata of any issue so far as respondent Helen Weede is concerned. Respondent Helen Weede was not a party to that litigation nor was she in privity with any party to that litigation. Furthermore, the only issue decided in that case was the right of Mr. B.C. Howard to an attorney's fee, an issue wholly foreign to any issue in this case. The decision in that case therefore is not res adjudicata of any issue in this case and is irrelevant and immaterial to the issues here presented. Moffett Brothers Partnership Estate case, supra; Missouri District Tel. Co. v. Bell Tel. Co., 338 Mo. 692, 93 S.W.2d 19; Kinnerk v. Smith, 328 Mo. 513, 41 S.W.2d 381; Thompson v. Scott, 323 Mo. 790, 19 S.W.2d 1063; State ex rel. Natl. Subway Co. of Missouri v. St. Louis, 145 Mo. 551, 46 S.W. 981; Baker v. Lamar, 140 S.W.2d 31; Moffett Bros. Partnership Estate v. Moffett, 345 Mo. 741, 137 S.W.2d 507; Duval v. Duval, 316 Mo. 626, 291 S.W. 488; Deck v. Wofford, 282 Mo. 564, 222 S.W. 443; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Laughlin v. Boatmen's Natl. Bank of St. Louis, 163 S.W.2d 761. (38) The allegations as to the res adjudicata effect of the Howard Fee case (Moffett Brothers Partnership Estate v. Moffett, 345 Mo. 741, 137 S.W.2d 507) tender only an issue of law properly determined by the demurrer. The extent to which the doctrine of res adjudicata may be applied is limited to the single issue decided by this court and extraneous evidence would, under these circumstances, be inadmissible. Howard Fee case, Moffett Brothers Partnership Estate v. Moffett, 345 Mo. 741, 137 S.W.2d 597; State ex rel. Bair v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521; Johnson v. Baumhoff, 322 Mo. 1017, 18 S.W.2d 13; Louise McGrew Moffett, Individually, etc., v. R.O. Robbins, Admr., 14 F. Supp. 602. (39) The Commerce Trust Company, as domciliary administrator in Missouri of Moffett Brothers, was fully authorized by law to sue in Kansas under the laws of Kansas and the judgment in Kansas is valid and is res adjudicata of the issues here. Sec. 22-1308. General Statutes of Kansas, 1923 and 1935; In re Estate of Thompson v. Coyle Co., 339 Mo. 410, 97 S.W.2d 93; Burrowes v. Goodman, 50 F.2d 92; First Natl. Bank of Brush, Colo. v. Blessing, 231 Mo. App. 288, 98 S.W.2d 149; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; Moffett v. Moffett, 131 Kan. 582, 292 P. 947. (40) There are no sufficient allegations of damage to any joint rights of plaintiff in her two capacities to state a joint right of action. The separate demurrer of this respondent was properly sustained on the ground of misjoinder of parties plaintiff. Lindsay v. Evans, 174 S.W.2d 390; Smith v. Burrus, 16 S.W. 881, 106 Mo. 94, 13 L.R.A. 59, 27 Am. St. Rep. 329; Kelley v. Osborn, 86 Mo. App. 239; Waddell v. Krause, 210 Mo. App. 117, 241 S.W. 964; Wilcox v. Gilmore, 8 S.W.2d 961; Sharpe v. Johnston, 76 Mo. 660; Catlett v. Chestnut. 146 So. 547, 108 Fla. 475; Weber v. Strobel, 225 S.W. 925; Kvasnicka v. Montgomery Ward Co., 350 Mo. 360, 166 S.W.2d 503; Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1; Seegers v. Marx Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526; Mitchell v. Greenough. 100 F.2d 184; Thomson v. Butler, 136 F.2d 644. (41) Plaintiff's petition is shot through and through with charges that the appointment of the Trust Company as executor de bonis non of the John Moffett estate and as administrator of Moffett Brothers estate were illegal and void and that as a consequence all of the acts of said Trust Company, under such appointments, were illegal and void, and that the Trust Company was merely a trespasser and usurper. The petition charges that these alleged appointments were illegally made: that the statutes under which said judges were selected were unconstitutional and void and that said special judges were acting illegally. Moffett v. Moffett, 131 Kan. 582, 292 P. 947; Clark v. Moffett, 136 Kan. 711, 292 P. 555, 290 U.S. 642, 290 U.S. 602; State v. Douglas, 50 Mo. 593; State v. Miller, 111 Mo. 542; 33 C.J., p. 1039, Note 46; 33 C.J., p. 1038; Commonwealth v. Stasio, 8 N.E.2d 923; In re Manning, 45 N.W. 26; In re Burke, 45 N.W. 24; In re Manning, 139 U.S. 504; State ex rel. v. Grayston, 349 Mo. 700, 163 S.W.2d 335; In re Franz' Estate, 346 Mo. 1149, 145 S.W.2d 400; Connor v. Paul, 138 Mo. App. 13, 119 S.W. 1006; Sec. 86, R.S. 1939. (42) The Commerce Trust Company, as domiciliary administrator in Missouri of Moffett Brothers was fully authorized by law to sue in Kansas under the laws of Kansas and the judgment in Kansas is valid and is res adjudicata of the issues here. Secs. 850, 854, R.S. 1939; Sec. 22-1308. General Statutes of Kansas, 1923 and 1935; In re Estate of Thompson v. Coyle Co., 339 Mo. 410, 97 S.W.2d 93; Burrowes v. Goodman, 50 F.2d 92, 97 S.W.2d l.c. 98; First Natl. Bank of Brush, Colo. v. Blessing, 231 Mo. App. 288, 98 S.W.2d 149; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; Moffett v. Moffett, 131 Kan. 582, 292 P. 947; Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229. (43) Among the charges of fraud and conspiracy, upon which plaintiff's suit rests, is the allegation that defendants fraudulently conspired to cheat and defraud plaintiff and caused illegal sales of the Moffett Brothers real estate to be made, to her great damage. The petition shows that each and every one of the sales complained of were made by various sheriffs of various counties in which the land was situated, appointed by the court, to make such sales, that all of said sales were approved by the court and are valid and are not subject to collateral attack. First Natl. Bank v. Barrons, 109 Kan. 493, 200 P. 297; Holt v. Co., 140 S.W.2d 59; 31 Am. Jur., p. 470, sec. 134; 35 C.J., p. 96, sec. 154; Pewabic Mining Co. v. Mason, 145 U.S. 349; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 76; Noland v. Barrett, 26 S.W. 692, 122 Mo. 181; Jones v. Bradley; 176 S.W.2d 72. (44) The right of Commerce Trust Company to represent the John Moffett estate and the Moffett Brothers Partnership estate in the Harper County, Kansas, Partition-Accounting suit was fully litigated in the Kansas and Federal Courts and is now res adjudicata. Such judgments are entitled to full faith and credit in this State. Louise McGrew Moffett, Individually, etc. v. R.O. Robbins, Admr., 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; Cook's Estate v. Brown, 346 Mo. 281, 140 S.W.2d 42; O'Connell v. Smith, 131 S.W.2d 730; Groves v. Aegerter, 226 Mo. App. 128, 42 S.W.2d 974; Harris v. Sanders, 38 Mo. 421; Mayberry v. McClurg, 51 Mo. 256; Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229; 34 C.J., p. 566, sec. 867; Aiple-Himmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S.W. 480; T.J. Moss Tie Co. v. Stamp, 25 S.W.2d 138. (45) Appellants may not relitigate the issues as to the jurisdiction of the Kansas District Court which it has heretofore litigated in that court, in the Supreme Court of Kansas and in the Federal Courts and which judgments have now become final, conclusive and res adjudicata. Please see Points III and IV. Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760; Johnston v. McCluney, 80 S.W.2d 898; White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18; Owens v. Owens, 347 Mo. 80, 146 S.W.2d 569; Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229; Root Grain Co. v. Livengood, 151 Kan. 706, 100 P.2d 714. (46) Appellant Louise McGrew Moffett was a party to the Kansas and Federal Court litigation and is bound by it. She participated in the trials, took appeals and was heard in the appellate courts. Those judgments have now become res adjudicata against her as to the issues tried in said cause. See Points III and IV. Clark and Louise McGrew Moffett v. Moffett, 136 Kan. 711, 18 P.2d 555; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; Owen v. Gilchrist, 304 Mo. 330, 263 S.W. 423; Brown v. Wabash Ry. Co., 222 Mo. App. 518, 281 S.W. 64; Troll v. St. Louis, 257 Mo. 626, 168 S.W. 167; Wors v. Tarlton, 234 Mo. App. 1173, 95 S.W.2d 1199; Kessler v. Townsley, 182 So. 232; Dean v. Kirkland, 301 Ill. App. 495, 23 N.E.2d 180; Ginocchio v. Illinois Cent. R. Co., 264 Mo. 516, 175 S.W. 196. (47) The judgment of the court sustaining this respondent's demurrer to plaintiffs' Fifth Amended Petition deprived plaintiffs of no rights secured to her by the Fourteenth Amendment to the United States Constitution. Corfield v. Coryell, 4 Wn. C.C. 371, 6 Fed. Cas., page 546, No. 3230; Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397; Prudential Ins. Co. v. Cheek, 259 U.S. 530, 42 S.Ct. 516, 27 A.L.R. 27; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; McKnett v. St. Louis S.F. Ry. Co., 292 U.S. 230, 54 S.Ct. 690; Hero v. Pitcairn, 65 S.Ct. 459; American Ry. Express Co. v. Commonwealth of Kentucky, 273 U.S. 269, 47 S.Ct. 353; Neblett v. Carpenter, 305 U.S. 297, 59 S.Ct. 170; In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; Duchay v. Acacia Mutual Life Insurance Co., 105 F.2d 768; Smith v. Fourth Natl. Bank of Tulsa, 141 F.2d 294; Mason v. Hitchcock, 1 Cir., 108 F.2d 134; Stevens v. Larwill, 110 Mo. App. 140, 84 S.W. 113, (48) All of the separate demurrers which were sustained by Judge Ridge had been refiled by the several defendants to the last amended petition. All former petitions were in law abandoned. None of the demurrers so refiled constituted a waiver. All of the said demurrers presented the statutory ground that the last amended petition did not state facts sufficient to constitute a cause of action in favor of plaintiffs and against defendants (Section 922, R.S. Mo. 1929). The petition shows on its face that it is a suit in law for the recovery of damages on account of certain judgments alleged to have been the result of a conspiracy on the part of defendants to deprive plaintiff of her constitutional rights. It further shows that the various courts in which said judgments were rendered had jurisdiction of the parties and the subject matter, that said courts had the right to decide the issues complained of and that said judgments were valid. It further shows that all of said judgments remain standing unreversed and are therefore binding on all parties. It follows that all of the charges in said petition relating to said judgments show on the face of the petition that they do not state facts sufficient to constitute a cause of action on account of said judgments and that the judgment of Judge Ridge must be affirmed. 4 Am. Eng. Pleading and Practice, p. 736; Ross v. Woods, 70 N.Y. 185; Gusman v. Hearsay, 28 La. Ann. 709, 26 Am. Rep. 104; Hocken v. All State Ins. Co., 235 Mo. App. 991, 147 S.W.2d 182. (49) The judgment of Judge Ridge sustaining the demurrer on the ground of misjoinder of parties plaintiff is right and should be affirmed. Judge Ridge did not overrule the other ground of the several demurrers and even if he were wrong in sustaining the demurrers on the specified ground, still the judgment should be affirmed because it is right. The other grounds of the demurrer were good and they are all before this court for determination. The reasons stated by the court in ruling upon the demurrer are immaterial if the result of the ruling was right in law. Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329; Hartvedt v. Harpst, 173 S.W.2d 65; Cherry v. Chorn, 221 Mo. App. 1207, 299 S.W. 598; Tucker v. Diocese of West Missouri, 264 S.W. 897; Fidelity Loan Securities v. Moore, 280 Mo. 315, 217 S.W. 286; St. Louis v. Frisco Ry., 330 Mo. 499, 50 S.W.2d 637; Elmer v. Copeland, 141 S.W.2d 160; Sec. 921, R.S. 1939; Darby v. Cabanne, 1 Mo. App. 126; Morgan v. Bouse, 53 Mo. 219; Wilson v. Polk Co., 20 S.W. 469; Hanson v. Neal, 215 Mo. 256; Adams v. Stockton, 133 S.W.2d 687; Wilson v. Polk Co., 112 Mo. 126, 20 S.W. 469; Vogel v. Bushnell, 203 Mo. App. 623, 221 S.W. 819; Stratton v. City of Warrensburg, 167 S.W.2d 392; Renshaw v. Reynolds, 317 Mo. 484, 297 S.W. 374; Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 112 S.W.2d 345.

James E. Goodrich, Hugh M. Hiller and Eugene E. Bowers for respondent Commerce Trust Company.

(1) The circuit court had full jurisdiction to rule upon the separate demurrers to the fifth amended petition as amended on December 30, 1944; it properly made such rulings on that day; and in so doing violated no constitutional rights of appellants under Section I, Amendment XIV to the Constitution of the United States. Dohany v. Rogers, 281 U.S. 362, 7 L.Ed. 904; State ex rel. v. Bockelman, 240 S.W. 209; State v. Mo. Workmen's Comp. Comm., 318 Mo. 1004, 2 S.W.2d 796; St. Louis v. Alexander, 23 Mo. 483; Keane v. Cushing, 15 Mo. App. 96, l.c. 99; 50 Am. Jur., sec. 500, p. 518; Rosenfeldt v. St. L. S. Ry., 180 Mo. 564; Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797; Johnson v. Grayson, 230 Mo. 380, 130 S.W. 673. (2) The circuit court had already heard arguments on the demurrers; it did not overrule the grounds of demurrer other than misjoinder of plaintiffs. Such other grounds of demurrer are before this court by the arguments of the appellants themselves and if the action of the trial court is sustainable upon any ground of demurrer so assigned its judgment must be affirmed. Fadler v. Gabbert, 333 Mo. 651, 63 S.W.2d 121; Akins v. Hicks, 109 Mo. App. 95, 83 S.W. 75; Duvall v. Duvall, 316 Mo. 626, 291 S.W. 488; Tucker v. Diocese of West Mo., 264 S.W. 897; Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329; Fidelity Loan Securities v. Moore, 280 Mo. 315, 217 S.W. 286; Hartvedt v. Harpst, 173 S.W. 265; Hurst Home Ins. Co. v. Deatley, 175 Ky. 728, 194 S.W. 910. (3) The separate demurrers of Commerce Trust Company to the various amended petitions were not collateral attacks upon the order of Judge Buzard overruling the separate motion of Commerce Trust Company to strike the first amended petition. The question of departure must be raised by motion and cannot be raised by demurrer. DeLisle v. Spitler, 349 Mo. 649, 162 S.W.2d 854; Reinker v. Wesche, 117 S.W.2d 334; Walker v. Railroad, 193 Mo. 453, 92 S.W. 83; Grymes v. Mill Lumber Co., 111 Mo. App. 358, 85 S.W. 846; Kopp v. Moffett, 167 S.W.2d 87; Mason v. Crowder, 85 Mo. 526; Queen City Inv. Co. v. Kreider, 31 S.W.2d 1002; Donahue v. Bragg, 49 Mo. App. 273; Darrow v. Briggs, 261 Mo. 244. (4) The separate demurrer of Commerce Trust Company was neither a motion, speaking demurrer nor answer, but was a proper demurrer calling for the judgment of the court as a matter of law, solely upon the allegations of the petition and matters of which the court was required to take judicial notice in connection therewith. Stonemets v. Head, 248 Mo. 243, 154 S.W. 108; Odom v. Langston, 351 Mo. 609, 173 S.W.2d 826; 28 Words and Phrases (Perm. Ed.), p. 676; State ex rel. v. Buzard, 351 Mo. 746, 173 S.W.2d 915; State ex rel. v. Hostetter, 222 S.W. 750; Street Ry. Co. v. Petters, 196 Ill. 298, 63 N.E. 662; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Thompson v. Scott, 323 Mo. 790, 19 S.W.2d 1063; Sabol v. Cooperage Co., 31 S.W.2d 1041; Southern Ottawa v. Perkins, 94 U.S. 260; State v. Wray, 109 Mo. 594; Howard v. Moffett, 345 Mo. 741, 137 S.W.2d 507; Kilpatrick v. Roberts, 278 Mo. 257, 212 S.W. 884; Givens v. Thompson, 110 Mo. 432, 19 S.W. 833; Lemon v. Drainage District, 310 Mo. 171, 275 S.W. 44; Herwick v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Bowersock Mill Power Co. v. Citizens Trust Co., 298 S.W. 1048; Knisley v. Leathe, 256 Mo. 341; State ex rel. v. Spencer, 79 Mo. 314; Schuchman v. Heath, 38 Mo. App. 280; Field v. Natl. City Bank of St. Louis, 343 Mo. 419, 121 S.W.2d 769; Bennett v. Metropolis Pub. Co., 148 S.W.2d 109; State ex rel. v. Hughes, 155 S.W.2d 184; State ex rel. v. Monarch Trans. Storage Co., 20 S.W.2d 60. (5) The Circuit Court of Jackson County had jurisdiction to sustain the separate demurrers of respondent Commerce Trust Company to the three petitions of plaintiffs which were held insufficient by the court, under the provisions of the Code of Civil Procedure which were in force at the time of each and all of the said respective rulings. Akins v. Hicks, 109 Mo. App. 95, 83 S.W. l.c. 76; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Doerr-Engel Oil Sup. Co. v. Tide Water Oil Co., 342 Mo. 1141, 119 S.W.2d 402; Niederberg v. Golluber, 162 S.W.2d 592; Anderson v. McPike, 41 Mo. App. 328, 331; Jenkins v. Wiley, 300 Mo. 110; Draper v. Brown, 115 Wis. 361, 91 N.W. 1001. (6) The appellants, in their distinct capacities as an individual and as executrix, could not unite their alleged separate and distinct causes of action in the same petition or suit. The circuit court rightly so held in this case, in sustaining the separate demurrer of Commerce Trust Company on that ground. Such attempted joinder seeks to unite in the same suit, legal and equitable interests, in violation of Sec. 851, R.S. Mo. 1939, to evade the complete and exclusive jurisdiction of the Probate Court of Jackson County, Missouri; and to assert concurrently, interests of executrix and distributee of the same estate, which (even if the interest of the distributee be established upon final settlement and order of distribution) are consecutive and not concurrent. The charged conspiracy gives no support to such joinder. Secs. 850, 851, 917, R.S. 1939; Sec. 60-601, G.S. Kan. 1935; Niederberg v. Golluber, 162 S.W.2d 592; Doerr-Engle Oil S. Co. v. Tide Water Oil Co., 342 Mo. 1141, 119 S.W.2d 402; Odom v. Langston, 351 Mo. 609, 173 S.W.2d 826; Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S.W.2d 440; Repetto v. Walton, 313 Mo. 182, 281 S.W. 411; Belt v. Ryle, 190 S.W.2d 1002; Mining Co. v. Ralston, 296 P. 262; Smith v. St. Louis Union Tr. Co., 340 Mo. 979, 104 S.W.2d 341; Wass v. Hammontree, 77 S.W.2d 1006; State ex rel. Gott v. Fidelity Dep. Co., 317 Mo. 1078, 298 S.W. 83; McVeigh v. Trust Company, 140 Kan. 79, 34 P.2d 571; Brown v. Baxter, 77 Kan. 97, 94 P. 155; In re Mills' Estate, 349 Mo. 611, 162 S.W.2d 807; Scott v. Royston, 223 Mo. 568, 123 S.W. 454; Bank v. Hoppe, 132 Mo. App. 449; In re Estate of Messersmith, 264 Mo. 610; Johnson v. Chapman, 220 Mo. App. 1331, 296 S.W. 836; Breimeyer v. Bottling Co., 136 Mo. App. 84. See also Scott v. Alton Banking Trust Company, 175 S.W. 920, and the application thereof made by one of the attorneys for appellants herein in point (b) beginning in the 2d line of page 674 in the case of Mack v. Eyssell, 332 Mo. 671. Wright v. Afro-American Co., 137 A. 273, 52 A.L.R. 908; Adams v. Stockton, 133 S.W. 687; Ryder v. Jefferson Hotel Co., 113 S.E. 474, 25 A.L.R. 739; State ex rel. v. Beasley, 57 Mo. App. 570; Head v. Sutton, 31 Kan. 616, 3 P. 280; Toller v. Judd, 262 Mo. 344; Koewing v. Building Loan Assn., 327 Mo. 680, 32 S.W.2d 40; Gaedis v. Met. St. Ry. Co., 143 S.W. 565; Reddick v. Walsh, 15 Mo. 519; Farmers Traders Bank v. Kendrick, 108 S.W.2d 62; Lineback v. Howerton, 181 Ark. 433, 26 S.W.2d 74; In re Nolan's Estate, 56 Ariz. 366, 108 P.2d 391; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431; Moffett v. Robbins, 298 U.S. 675, 80 L.Ed. 1397, 56 Sup. Ct. 940; In re Moffett Bros. Partnership Estate, 345 Mo. 741, 137 S.W.2d 507; Cook v. Basom, 164 Mo. 594, 65 S.W. 227; Harris v. Calvert, 2 Kan. App. 749; Campbell v. Fichter, 168 Ind. 645, 11 Ann. Cas. 1089; Gardner v. Armstrong, 31 Mo. 535; Leinbach v. Dyatt, 112 Kan. 782; 1 C.J.S., sec. 97, pp. 1278, 1282; 47 C.J., 198, 199; Troll v. St. Louis, 257 Mo. 626; Bell v. McCoy, 136 Mo. 552; Wahl v. Murphy, 99 S.W.2d 32; Enyart v. Boud, 216 Mo. App. 480; Jones v. Peterson, 72 S.W.2d 76; Bank v. Hoppe, 132 Mo. App. 449; Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083; Thomas v. Sterling Finance Co., 180 S.W.2d 788; Baucke v. Adams, 188 S.W.2d 355; Sec. 4633, R.S. 1939. (7) The circuit court committed no error in assigning the cause to Division 6 and rendering therein the judgment made mandatory by the statute without further notice or hearing, and no right of the appellants under Section 1 of Amendment XIV to the Constitution of the United States was violated by the proceedings aforesaid. Secs. 948, 1098, R.S. 1939; Beardslee v. Morgner, 73 Mo. 22; Lasar v. Baldridge, 32 Mo. App. 362; Gordon v. Burris, 125 Mo. 39; Everett v. Glenn, 225 Mo. App. 921, 35 S.W.2d 652; State ex rel. v. Johnson, 272 S.W. 928; Sidway v. Land Live Stock Co., 197 Mo. 359; Bank of Tupelo v. Stonum, 220 Mo. App. 152; Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; State ex rel. v. Landwehr, 60 S.W.2d 4, 332 Mo. 622; Pelz v. Ballinger, 180 Mo. 252, 79 S.W. 146; Barth v. Railway Co., 142 Mo. 535, 44 S.W. 778. (8) The circuit court did not err in rendering its judgment on December 30, 1944, in dismissing the cause as to each and all of the respondents and in adjudging that they recover treble costs of and from the appellants and have execution therefor. Such judgment was in conformity to and in compliance with Section 948, R.S. Mo. 1939, and fully within the jurisdiction of the court. Beardslee v. Morgner, 73 Mo. 22; Sec. 948, R.S. 1939; Sidway v. Land Live Stock Co., 197 Mo. 359; Banks of Tupelo v. Stonum, 220 Mo. App. 152; Everett v. Glenn, 225 Mo. App. 921, 35 S.W.2d 652; Foster v. Petree, 235 Mo. App. 414, 141 S.W.2d 131; State ex rel. v. Johnson, 272 S.W. 928; Bryan v. Railroad Co., 292 Mo. 535, 238 S.W. 484, 23 A.L.R. 537; Bennett v. Bank, 62 Mo. App. 297; Lasar v. Baldridge, 32 Mo. App. 362; Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; Pelz v. Ballinger, 180 Mo. 252, 79 S.W. 146; Barth v. Ry. Co., 142 Mo. 535, 44 S.W. 778; Voorhees v. Exposition Co., 243 Mo. 418; Tapana v. Shaffray, 97 Mo. App. 337; Pepper v. West Plains Tel. Co., 34 S.W.2d 540; State ex rel. v. Warner, 197 Mo. 650; Barnett v. A. P. Railroad Co., 68 Mo. 56; Spealman v. Mo. Pac. Ry. Co., 71 Mo. 434; Humes v. Mo. Pac. Ry. Co., 82 Mo. 221; Fiedler v. Construction Co., 162 Mo. App. 528; Ross, Admr., v. Alleman, 60 Mo. 269; Strother v. Railroad, 187 Mo. App. 303. (9) Section 948, R.S. Mo. 1939, was not void under Section X of Article I of the United States Constitution. The provisions of said section of the statutes have none of the attributes of a bill of pains and penalties nor a bill of attainder. Secs. 946, 947, 948, R.S. 1939; Dobbins v. Economic Gas Co., 182 Cal. 616, 189 P. 1073; Webb v. Bidwell, 15 Minn. 479; Dept. of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277; Comstock v. Davis, 51 Mo. 569; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W.2d 803; Tucker v. Diocese of W. Mo., 264 S.W. 897; Beardslee v. Morgner, 73 Mo. 22; Sidway v. Land Live Stock Co., 197 Mo. 359; Bennett v. Southern Bank of Mexico. 61 Mo. App. 297; Kithcart v. Metropolitan Life Ins. Co., 55 F. Supp. 200. (10) There was no lack of jurisdiction in the circuit court or any division thereof to sustain Commerce Trust Company's separate demurrers to the first and third amended petitions or to render the judgment of December 30, 1944, by reason of any alleged fraud perpetrated upon said court in Divisions 1 and 9 or by reason of the allegations of the petition with reference to the matters alleged on said pages of the petition; and no obstruction of justice within the meaning of Section 4632, R.S. Mo. 1939, as contended by appellants under their Point XVIII and incidentally alluded to in their Points XIV and XXI by reason of the allegations of the petition or as to alleged "fictitious suits." No error was committed by the court in dismissing appellants' case because three pleadings had been held insufficient, on account of any of the matters aforesaid. Sec. 4632, R.S. 1939; State ex rel. v. Johnson, 272 S.W. 928; Meierhoffer v. Hansel, 294 Mo. 195, 243 S.W. 131; Hargadine-McKittrick Drygoods Co. v. Garesche, 227 S.W. 824; State ex rel. v. Miller, 266 S.W. 985; Rule 29, Circuit Court; Roberts v. Land Improvement Co., 126 Mo. 460; Konta v. Stock Exchange, 150 Mo. App. l.c. 620; Fears v. Riley, 148 Mo. 49, 49 S.W. 836; Biebinger v. Taylor, 64 Mo. 63; Gehrke v. Jod, 59 Mo. 522; Ketcham v. Harlow, 84 Mo. 225; Moffett v. Robbins, 81 F.2d 431. (11) In connection with the arguments of appellants under their Points XIV and XXI, no facts are alleged in the petition showing obstruction of justice as to the appellants, in the present action or otherwise. Such charges in the petition are in legal effect charges of malicious prosecution, and this action will not lie on account thereof because such alleged "fictitious" suits and claims are within the exclusive jurisdiction of the respective courts wherein they are pending and same had not terminated in favor of the appellants or adversely to the respondents at the commencement of this action. Davis v. Farmers' Grain Produce Co., 48 S.D. 15, 201 N.W. 708; Higgins v. Knickmeyer, 74 S.W.2d 805; Bonzo v. Kroger Gro. Bak. Co., 125 S.W.2d 75; Dye v. Loewer, 94 S.W.2d 948; Freymark v. Bread Co., 55 Mo. App. 435; Sharpe v. Johnson, 76 Mo. 660; Kelley v. Osborn, 96 Mo. App. 239; Lehmer v. Smith, 284 S.W. 167; Weber v. Strobel, 225 S.W. 925; Catlett v. Chestnut, 108 Fla. 475, 146 So. 547 (cited and quoted in 139 A.L.R. 469). (12) The allegations as to libel in the petition assert a cause of action which on the face of the petition, if it did accrue, did so long after the commencement of this suit on August 22, 1941, and cannot be prosecuted in this action. Lennox v. Coal Co., 158 Mo. 473; Lindsay v. Evans, 174 S.W.2d 390; Jegglin v. Orr, 224 Mo. App. 773. (13) By reason of the limitations upon the derivative and appellate jurisdiction of this court prescribed by law and by reason of the limitations placed by this court upon the scope of its decision in the Howard fee case, nothing was decided or adjudged therein beyond the fact that B.C. Howard, having represented conflicting interests in the Kansas litigation and having received pay from one of the conflicting interests, was not entitled to additional compensation from the other and adverse interest. The contentions of the appellants in their Points XII and VIII, that it was conclusively determined in the Howard fee case, that appellants sustained any injury as a result of the Kansas litigation and that the right of appellants either jointly or individually to maintain the instant action were adjudicated in favor of appellants by the judgments in the Howard fee case are fallacious, entirely unsupported either by precedent or logic. In re Moffett Bros. Partnership Estate, 345 Mo. 747; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; In re Wilcox, 90 Kan. l.c. 96; Peterson v. K.C. Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770, 108 A.L.R. 583; Kruger v. Licklider, 76 S.W.2d 113; Moffett v. Robbins, 81 F.2d 431, 298 U.S. 675; Corliss v. Lumber Co., 152 Kan. 327, 103 P.2d 781; State ex rel. Burns v. Woolfolk, 303 Mo. l.c. 595; In re Mills' Estate, 162 S.W.2d 807; Duval v. Duval, 316 Mo. 626; Cambria v. Jeffrey, 307 Mass. 49, 29 N.E. 555; Pauls v. Janetakos, 129 P.2d 632, 142 A.L.R. 1237. (14) Commerce Trust Company had authority under the statutes of Missouri and its charter to act as administrator of partnership estates. Kerens v. St. Louis Un. Trust Co., 283 Mo. 601, 223 S.W. 645; Secs. 8024, 8026, R.S. 1939; Whalen v. Buchanan County, 342 Mo. 33, 111 S.W.2d 177; Pate v. Ross, 229 Mo. App. 836, 84 S.W.2d 961; State v. Ball, 171 S.W.2d 287. (15) Its authority as administrator of Moffett Brothers and Moffett Brothers and Andrews partnership estates can not be attacked collaterally in this action. Brawford v. Wolfe, 103 Mo. 391, 15 S.W. 426; Griesel v. Jones, 123 Mo. App. 45, 99 S.W. 769; Johnson v. Beasley, 65 Mo. 250; Vermillion v. LeClare, 89 Mo. App. 55. (16) The acts of special judges of the Probate Court of Jackson County with respect to the appointment and qualification of Commerce Trust Company as executor d.b.n. of the estate of John Moffett, deceased, and as administrator of the partnership estates of Moffett Brothers and Moffett Brothers and Andrews are valid and binding. Sections 2458-2461, R.S. Mo. 1939, are constitutional. They do not attempt to create a new office in violation of the Constitution of the State of Missouri, but simply provide a method for the temporary filling in case of emergencies, of the constitutional office of probate judge. The statute complained of never has been adjudged unconstitutional, and the temporary occupant of the de jure office of Probate Judge of Jackson County, under Sec. 2458 id. was the judge de facto, whose authority cannot be questioned by the appellants in a collateral proceeding, such as the suit ended by the judgment here on appeal. Graves v. Purcell, 337 Mo. 574, 85 S.W.2d l.c. 549; State v. Douglass, 50 Mo. 593; State v. Grayson, 349 Mo. 700, 163 S.W.2d 335; Norton v. Shelby County, 118 U.S. 425, 30 L.Ed. 178; State ex rel. v. Gott, 317 Mo. 1078, 298 S.W. 83; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555; State ex rel. v. Thatcher, 338 Mo. 622, 92 S.W.2d 640; Secs. 2458-2461, R.S. 1939; 14 Words Phrases (Perm. Ed.) 160; Harbaugh v. Winsor, 38 Mo. 327. (17) The partnership statutes of Missouri are valid and constitutional; Commerce Trust Company is the duly appointed, qualified, and acting administrator of the partnership estates of Moffett Bros. and Moffett Bros. and Andrews; administration of said partnership estates is pending and the administration of the estate of Thomas S. Moffett is pending in the Probate Court of Jackson County, Missouri. Said facts, disclosed on the face of the petition, show that the exclusive jurisdiction of said estates is vested in the Probate Court of Jackson County, Missouri, and, therefore, no cause of action by reason of matters involved in said estates has accrued either to the individual or to the executrix appellant; and as to all such matters, the face of the petition shows that the Circuit Court of Jackson County, Missouri, had no jurisdiction (as to such matters) of the subject matter of this action, and this court has no jurisdiction by reason of the appeal herein. 1 Woerner Admn. (2 Ed.), p. 97, sec. 129; Barnes v. Stanley, 95 Mo. App. l.c. 692; Secs. 92, 8024, 8026, 8068, R.S. 1939; Troll v. St. Louis, 257 Mo. l.c. 659; Groves v. Aegerter, 226 Mo. App. l.c. 133; Smith v. Trust Co., 340 Mo. 979. (18) There is no basis for appellants' contention that the Supreme Court of Missouri in the Howard Fee case decided that the judgment of the Harper County District Court was void. Howard Fee Case, 345 Mo. 741; Clark v. Moffett, 136 Kan. 711, 290 U.S. 602, 642; Olson v. Lambert, 158 Kan. 94, 145 P.2d 159; Haney v. Thompson, 339 Mo. 505; Woodson v. Railroad, 110 Mo. App. 208; Postelthwaite v. Ghiselin, 97 Mo. 420; Manley v. Park, 62 Kan. 553; Westerman v. Westerman, 121 Kan. 501; Boyles v. Emery, 153 P.2d 936; Coleman v. Apple, 298 F. 718; Foltz v. St. Louis S.F. Ry. Co., 60 F. 316; Erickson v. U.S., 44 Sup. Ct. 310; Selders v. Boyle, 5 Kan. App. 451; Potts v. West, 124 Kan. 815; In re Thompson, 339 Mo. 410, 97 S.W.2d 93; Bodine v. Farr, 353 Mo. 206, 182 S.W.2d 173; 31 Am. Jur., sec. 654, p. 230; Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031; Sutter v. Easterly, 354 Mo. 282; Williams v. North Carolina, 89 L.Ed. 1123; Keller v. Keller, 179 S.W.2d 728; Leichty v. Kansas City Bridge Co., 354 Mo. 629; Secs. 1, 6, Art. 3 of Kansas Constitution; Sec. 20-301, G.S. Kan. 1935; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Moffett, 131 Kan. 582. (19) Appellants, in their petition and brief, challenge the validity of Sec. 22-1308, R.S. Kan., and in Point VIII refer to cases in support of this contention. Appellants' challenge in this regard is unwarranted. Sec. 22-1308, R.S. Kan.; Clark v. Moffett, 136 Kan. 711; Cady v. Bard, 21 Kan. 667; Denny v. Faulkner, 22 Kan. 89; Manley v. Mayer, 68 Kan. 377; Sec. 59-1708, 1941 Supplement to the General Statutes of Kansas (L. 1939, Ch. 180, # 138); In re Thompson's Estate, 339 Mo. 410; Moffett v. Moffett, 131 Kan. 552; Hill v. Barton, 194 Mo. App. 325. (20) Under the laws of Kansas, the sale of the Harper County lands was a judicial one, was subject to confirmation by the court, and no appraisal was required. First Natl. Bank of Plainville v. Barons, 109 Kan. 493; Carter v. Hiatt, 76 Kan. 304, 91 P. 61; Moore v. McPherson, 106 Kan. 258, 197 P. 884; Peterson v. K.C. Life Ins. Co., 339 Mo. 700, 108 A.L.R. 583. (21) The appellants cannot, in this action, use the allegations of the petition as to alleged false book entries and Commerce Trust Company's Exhibit No. 8, or as to representation of conflicting interest by respondent Howard in the Kansas litigation, or the allegations with respect to transactions between the Moffetts and the Commissioner of Internal Revenue for the purpose of attacking the validity of the Kansas judgments or asserting any cause or causes of action in the present suit. Clark v. Moffett, 136 Kan. 711; Moffett v. Robbins, 81 F.2d 431; Moffett v. Moffett, 131 Kan. 582; 154 A.L.R. 501. Annotation; Lamb v. Isley, 114 S.W.2d 673; In re Thompson's Estate, 339 Mo. 410, 97 S.W.2d 93; Emmons v. Gordon, 140 Mo. 490; Leichty v. K.C. Bridge Co., 354 Mo. 629.

Wm. Dennis Bush for respondent B.C. Howard.

(1) Appellants can not under the decision of the Missouri courts amend their original petition so as to set up the aforesaid claims for damages on account of matters and things occurring since the filing of the original 10 page petition herein because plaintiff cannot sue for damages arising from acts committed in this case since the commencement of this suit. Damages for such things can no more be recovered than plaintiff could recover damages on account of expense paid out for attorneys' fees in this pending suit. Northcutt v. McKibben, 236 Mo. App. 605, 159 S.W.2d 699; Lindsay v. Evans, 174 S.W.2d 390; Hembrook v. Stark, 53 Mo. 588. (2) The attack made upon the Howard brief filed in the trial court as a defamation and libel of the plaintiffs-appellants and their counsel has no proper place in this case. If either of said plaintiffs-appellants are libeled their action is an individual one and joint action can not be maintained. Vogel v. Bushell, 221 S.W. 819, 203 Mo. App. 623. (3) Under the rule of absolute privilege the attorney can publish false and defamatory matter of another and even if the matter complained of in the Howard brief was false and defamatory (which is denied) it is not actionable. Laun v. Union Electric Co., 350 Mo. 372, 166 S.W.2d 1065. (4) That the Kansas Courts have exclusive jurisdiction in the administration of Kansas assets is too well established to be subject to dispute. City Bank v. Schnader, 293 U.S. 112, 55 S.Ct. 29. (5) Even if the judgment was procured on perjured testimony (which is not true in this case) the only relief of the parties would be by a direct action in equity to set aside the judgment. A direct action to set aside a judgment is a proceeding in rem against the res and must be brought in the jurisdiction where the judgment was rendered. State ex rel. v. Price, 38 Mo. 382; Carthage Bank v. Poole, 160 Mo. App. 133, 141 S.W. 729; Capitain v. Miss. Valley Trust Co., 240 Mo. 484, 144 S.W. 466; 34 C.J., p. 520, sec. 827.

Glen A. Wisdom for respondent William H. Kopp.


On December 30, 1944, Judge Ridge, Presiding Judge and Judge of Division Six of the Circuit Court of Jackson County, sustained separate demurrers filed by the various defendants to plaintiffs' fifth amended petition on the ground of misjoinder of parties plaintiff and, finding that a third petition of plaintiffs' had been found insufficient on said ground, dismissed the petition and rendered judgment against plaintiffs for treble costs under Section 948, Revised Statutes Missouri 1939. [Mo. R.S.A.] From that judgment plaintiffs have appealed.

The original petition with Louise McGrew Moffett as sole plaintiff was filed August 22, 1941. Afterwards the first amended petition was filed adding Mrs. Moffett, as executrix of the estate of Thomas S. Moffett, as a plaintiff, and adding two new defendants.

To the first amended petition respondent Kopp filed a demurrer on the ground that no cause of action was stated against him. The other respondents attacked the petition by separate motions. All these were overruled by Judge Buzard, then presiding judge. Afterwards respondents filed separate demurrers to this petition and they were sustained by Judge Terte, then presiding judge. Appellants filed a second and later a third amended petition. Judge Wright, then presiding judge, sustained separate demurrers to this petition. Successively appellants filed fourth and fifth amended petitions, demurrers to the latter being sustained by Judge Ridge as stated at the outset of this opinion.

The fifth amended petition, with attached exhibits, occupies two hundred pages of the printed record. The briefs are numerous and lengthy, aggregating thirteen hundred and fifty pages, citing and quoting from hundreds of decisions, many of which, we think, have no relevancy to any issue here involved. Appellants claim error under twenty-two numbered assignments, some being mainly a repetition of others. We have considered all of these assignments, but see no useful purpose in discussing each one separately.

Appellants contend: that the reason assigned by Judge Ridge for sustaining the demurrers, misjoinder of parties plaintiff, was not authorized by Section 922, Revised Statutes Missouri 1939: [Mo. R.S.A.] that he had no jurisdiction to pass on the demurrers without at least two days' notice to appellants under court rules; that he was precluded from passing on the demurrers because of previous rulings of Judge Buzard; that the alleged demurrers were really speaking demurrers, motions or answers; that it was proper to join appellants [as an individual and as executrix] as plaintiffs, and that this court so held in In Re Moffett Bros. Partnership, 345 Mo. 741, 137 S.W.2d 507; that the ruling of Judge Wright in sustaining demurrers to the third amended petition was void because induced by false statements in respondents' briefs; that Section 948, supra, purporting to require dismissal and award of treble costs after three petitions have been held invalid, is unconstitutional.

Appellants are in error in construing the new Civil Code [Mo. Laws, 1943, pp. 353, 397] as declaring what the law was at the date of its passage. They reach this result by emphasizing the word "is" in the sentence "misjoinder of parties is not a ground of demurrer to an action," but they overlook further provisions of the Code [Sec. 3] to wit: "This Code will take effect on January 1, 1945. It governs all proceedings in [590] actions brought after it takes effect and also further proceedings in all actions then pending, except . . ." [Emphasis ours.] Section 922, although now repealed, was in force on December 30, 1944, the date Judge Ridge ruled on the demurrers. The section does not in terms list "misjoinder of parties" as a ground of demurrer, but does, among other grounds, list "defect of parties plaintiff or defendant," and failure to "state facts sufficient to constitute a cause of action." Appellants say that as we copied the section from a law of New York we also adopted the construction placed upon it by the courts of that state, and cite some New York cases holding that misjoinder of parties is not a ground of demurrer. Appellants also cite Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121, and Kammeyer v. City of Concordia, 352 Mo. 742, 179 S.W.2d 76. In the Kammeyer case we held that a demurrer was properly sustained as to unnecessary plaintiffs, but that this did not authorize a dismissal as to the remaining plaintiffs. In the Fadler case we recognized the distinction between "defect of parties" and "misjoinder of parties," but said that "misjoinder of parties." although not listed in the statute, is a ground of demurrer because in that situation the petition does not state a cause of action. [See also Hallen v. Smith, 305 Mo. 157, 264 S.W. 665; State v. Trimble (Mo.), 262 S.W. 357.]

We will briefly set forth the general nature of the petition, but deem it unnecessary to make a complete summary. It alleges: that appellant's husband died testate, a resident of Missouri, and she is executrix and sole devisee; that he was a partner in several firms having a common office in Kansas City, Missouri, and owning property and doing business in various states; it purports to trace the administration of these partnerships through the courts of Missouri and Kansas; alleges that respondents have unlawfully appropriated much of the assets of the various partnerships by means of false book entries. perjured testimony, fictitious suits and in other ways; it recounts suits in various courts, one brought by Mr. Moffett in his lifetime and others after his death; says that judgments rendered in these cases are void because of perjured testimony at the trials or lack of jurisdiction because of void statutes; alleges that respondents have damaged appellant by libeling her and discrediting her attorneys. The petition says that the property of which she has been deprived is the fruit of the industry of herself and husband, but does not allege that she contributed any of her separate means either in money, property or the value of her labor. In another place [paragraph 9] appellant seems to claim sole ownership by virtue of her husband's will.

Appellants cite many cases decided by the courts of this and other states but we feel confident that no case cited or that can be cited approves a petition such as the instant one. We concede that in some circumstances an executor and a devisee may join as plaintiffs. We also adhere to our previous ruling in the Kammeyer case, supra. But here we have a different situation. The petition attempts to state a joint cause of action in favor of Mrs. Moffett as an individual and in her favor as executrix of her deceased husband's estate. It does not seek to recover specific property belonging either to her or to the estate, but prays recovery on account of alleged wrongful acts which it is alleged resulted in damages to her and the estate jointly. True, the petition alleges "that said property of which plaintiff was so deprived is, and was, a part of the gains of the industry of plaintiff and her late husband." That is hardly sufficient to allege joint ownership, but even if it be so construed there are other allegations which show that the damages claimed could not possibly accrue to Mrs. Moffett and the estate jointly. The petition seeks to recover damages for alleged wrongful acts pursuant to a conspiracy said to have been entered into prior to the death of Mrs. Moffett's husband and continued after his death. Some of the acts complained of are alleged to have been performed long after Mr. Moffett's death and after the institution of the suit. Among other things it is alleged that some of the respondents, in briefs filed in the case, "published of and concerning plaintiff in both capacities the following false, malicious, scandalous, defamatory, unprivileged and libelous statements . . ." Then in the prayer it is stated "that her reputation for integrity has been injured by said libelous and defamatory statements and by said wrongful acts . . . resulting in actual damage to plaintiff in the sum of $1,000,000.00." The prayer also is for punitive damages in the sum of $1,500,000.00.

[591] Although it is alleged that libel was directed at Mrs. Moffett "in both capacities," it is clear that any damages recovered on account of this allegation could only accrue to her as an individual, and the executor, devisees or creditors of the estate would have no interest in such recovery. These allegations and many others show that no joint cause of action is stated. Such defect appearing on the face of the petition, under the old code, could be reached by demurrer. The defect is more than a mere inclusion of an unnecessary plaintiff, as in the Kammeyer case, supra. In the instant case the demurrers reached the entire petition for the trial court had no authority to sort out the allegations, if any, which constitute a cause of action in favor of Mrs. Moffett in one capacity and sustain the demurrers only as to allegations relating to her in the other capacity. The petition fails to state a joint cause of action and it was unnecessary for the trial court and is unnecessary for this court to determine whether a cause of action is stated in favor of Mrs. Moffett in either capacity. [Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S.W.2d 440, l.c. 443; Doerr-Engel v. Tide Water Oil Co., 342 Mo. 1141, 119 S.W.2d 402; Niederberg v. Golluber (Mo.), 162 S.W.2d 592, l.c. 599.] Judge Ridge sustained the demurrers on the sole ground of misjoinder of parties, but the demurrers also attacked the petition for misjoinder of alleged causes of action and for failure to state a cause of action. We think the reason assigned by the trial court is sufficient, but his ruling can be sustained on the other grounds mentioned. [Hartvedt v. Harpst (Mo.), 173 S.W.2d 65, l.c. 68; Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329, 330.]

The circuit court of Jackson County is a multiple judge court. Its rules provide that the court en banc shall from time to time select one of the judges as Presiding or Assignment judge, whose duty it is to pass upon motions and demurrers, make up the issues and assign cases to the different divisions, including his own division. Two days' notice is necessary to call up a demurrer unless waived or a different time be fixed by the presiding Judge. The demurrers to the fifth amended petition were filed on or before December 6, 1944. Then appellants filed a reply on the theory that the demurrers were really answers, which reply was after a hearing stricken out on respondents' motions. Then on December 30, 1944, with all parties present by counsel, the demurrers were presented to Judge Ridge. Appellants, by leave of court, withdrew paragraph 45 of their fifth amended petition, and respondents refiled their demurrers. Appellants requested at least two days' delay on the ground that the demurrers had just been filed. The court, in the exercise of proper discretion, denied this request. [Kuh v. Garvin, 125 Mo. 547, 28 S.W. 847, l.c. 851.] The withdrawal of paragraph 45, which related to a suit brought by respondent Kopp against Mrs. Moffett, in no way affected the point made in the demurrers as to misjoinder of parties plaintiff or failure to state a cause of action. We see no violation of the rules.

Appellants say that Judge Ridge was without jurisdiction to dismiss the petition without determining that the previous demurrers had been properly sustained. The correctness of the rulings on former petitions was not before Judge Ridge and, although previous petitions are printed in the abstract, the question is not before us. By pleading over appellants waived the error, if there was such. [Voorhees v. Louisiana Purchase Co., 243 Mo. 418, 147 S.W. 783; Tobin v. Telephone Co. (Mo.), 199 S.W. 952; Buder v. Reller (Mo.), 190 S.W.2d 213.] Appellants' claim that Judge Ridge was under duty to reconsider the rulings of the former presiding judges is inconsistent with the claim that Judge Buzard's ruling is res judicata.

Appellants contend that Judge Ridge's ruling on the demurrers was invalid because constituting collateral attacks on Judge Buzard's former rulings; further, that the demurrers to the fifth amended petition were in truth motions, speaking demurrers or answers. We find no merit in these contentions. The pleadings ruled upon by Judge Buzard were motions to strike or to make more definite, except that respondent Kopp filed a separate demurrer on the grounds that the petition showed that he was not a necessary party and stated no cause of action against him. Later when demurrers to amended petitions were regularly presented successively to Judges Terte, Wright and Ridge as assignment judges, each was under a duty to rule the law as he saw it regardless of the view that Judge Buzard may have had when passing on the previous motions. There was no collateral attack. The rulings were by the same court, although by different [592] judges, on different petitions and at different stages of the case. [State ex rel. v. Landon, 304 Mo. 654, 265 S.W. 529, 532; Kinsella v. Kinsella, 353 Mo. 661, 183 S.W.2d 905, 908.] The pleadings ruled upon by Judge Ridge were demurrers, nothing more. They may have contained repetition and surplusage, but the complaint as to defect of parties and failure to state a cause of action were clearly stated. Such could be determined from the face of the petition.

In Re Moffett Bros. Partnership Estate, 345 Mo. 741, 137 S.W.2d 507, grew out of an attorney fee allowed B.C. Howard for representing Commerce Trust Company as administrator of the partnership estate, Mrs. Moffett, individually and as executor of her husband's estate, resisted the allowance in the probate, circuit and supreme courts. No point was presented or decided as to Mrs. Moffett's right to appear in both capacities. The only point decided was that Howard was not entitled to an additional fee. [345 Mo. l.c. 745.] Some of the respondents in the instant case were not parties to that suit. Certainly the decision in that case is not res judicata as to the sufficiency of the petition in the instant case. Appellants say that Judge Wright was induced to sustain demurrers to the third amended petition by false statements in briefs filed with him by some of the respondents; that, therefore, his ruling was void and could not be counted by Judge Ridge in holding three petitions had been held invalid. The question is not before us. If it was we would be concerned only with the correctness of Judge Wright's rulings, not his motives. For many reasons there is no merit in this contention; a sufficient reason is that appellants, by pleading over, waived the right to question Judge Wright's ruling.

Appellants say that Section 948, supra, violates article 1, section 10, of the Federal Constitution, which prohibits a state from passing a bill of attainder. No authority is cited which remotely sustains this contention. This statute, until the effective date of our new Code, was in force for one hundred and twenty years. It has frequently been construed by this and other courts and, so far as we know, its constitutionality has never been assailed before. It does not resemble a "bill of attainder" or of "pains and penalties." [See 16 C.J.S., p. 902, sec. 452.] It applies only to civil procedure, inflicts no penalty without a hearing, authorizes neither fine nor imprisonment, but only a money judgment for unreasonably consuming the time of courts and litigants and causing needless expense by filing defective petitions. Its constitutionality is presumed and appellants have offered nothing to rebut the presumption.

Nor does the failure of the section to specifically provide to whom the penalty shall be paid render it invalid. We think the trial court correctly interpreted the statute in rendering judgment for treble costs in favor of respondents.

Appellants make many other assignments of error; assailing the constitutionality of Missouri statutes relating to partnership estates, and the probate laws of both Missouri and Kansas; ask us to declare void certain decisions of the Supreme Court of Kansas; invoke the treaty between this country and France in 1803 and the "due process" and other provisions of the State and Federal Constitutions. Most if not all these questions have been decided adversely to appellants by courts of competent jurisdiction in suits brought by appellants or in which they actively participated as defendants. [Moffett v. Moffett, 131 Kan. 582, 292 P. 947; Clark v. Andrews, 136 Kan. 23, 13 P.2d 294; Clark v. Moffett, 136 Kan. 711, 18 P.2d 555. 290 U.S. 602; Moffett v. Robbins, 14 F. Supp. 602; Moffett v. Robbins, 81 F.2d 431, 298 U.S. 675.] Appellants have not been denied due process. They have not only had their day in court, but their months and years. None of these assignments is germane to the question of whether the fifth amended petition contains a misjoinder of parties plaintiffs or fails to state a joint cause of action.

We hold that the judgment is correct in form and in accordance with law and it is therefore affirmed. All concur.


Summaries of

Moffett v. Commerce Trust Co.

Supreme Court of Missouri, Division One
Apr 8, 1946
193 S.W.2d 588 (Mo. 1946)
Case details for

Moffett v. Commerce Trust Co.

Case Details

Full title:LOUISE McGREW MOFFETT and LOUISE MCGREW MOFFETT as Executrix of the Estate…

Court:Supreme Court of Missouri, Division One

Date published: Apr 8, 1946

Citations

193 S.W.2d 588 (Mo. 1946)
193 S.W.2d 588

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