Opinion
April 16, 1942. Rehearing Denied, June 3, 1942.
1. JUDGMENTS: Appeal and Error: Void Judgment of Court of Appeals is Subject to Collateral Attack. If the judgment of the Court of Appeals in a prior case was void, it would be subject to collateral attack.
2. JUDGMENTS: Eminent Domain: Parties: Appeal and Error: Municipal Corporations: Cemeteries: Court of Appeals Acted Within Jurisdiction. The City of Caruthersville, and certain individuals acting as its agents, filed a prior action to condemn a cemetery on behalf of the city. The trial court held that the individuals should bring the action and rendered a judgment on the merits in their favor, sustaining a demurrer against the city. The Court of Appeals held that the right of action was in the city and directed that the rights under the judgment be transferred to the city. The Court of Appeals acted within its jurisdiction.
3. JUDGMENTS: Eminent Domain: Parties: Constitutional Law: Due Process Not Violated. The action of the Court of Appeals in holding that a condemnation judgment in favor of individual plaintiffs, who were agents of the City of Caruthersville, should be transferred to the city, which was also a plaintiff, did not violate due process, the defendants having had a trial on the merits with the city as the real plaintiff.
4. JUDGMENTS: Parties: Eminent Domain: Appeal and Error: Res Judicata. The judgment of the Court of Appeals in a prior case transferring a condemnation judgment to the City of Caruthersville as the real party plaintiff, and the judgment of the circuit court thereon, was properly pleaded as res judicata.
Appeal from Pemiscot Circuit Court. — Hon. Louis H. Schult, Judge.
AFFIRMED.
Corbett Peal for appellants.
(1) The Springfield Court of Appeals is an appellate and not a trial court. It had jurisdiction of only so much of the case as was brought before it by the appeal. It did not have jurisdiction to dispose of the whole case and direct a final judgment on the merits, on a mere finding that the petition of the city of Caruthersville stated a cause of action, and its order, judgment and mandate directing the trial court to render final judgment on the merits was and is void. State ex rel. v. Smith, 188 Mo. 167; State ex rel. v. Smith, 176 Mo. 90. (2) And if the judgment of the court of appeals directing a final judgment on the merits was void, because the merits were not before the court of appeals for adjudication, then the judgment of the circuit court, following the mandate of the court of appeals, was based upon a void judgment and is also void. Ralph et al. v. Annuity Realty Co., 28 S.W.2d 662. (3) A judgment pleaded in bar, being a nullity, furnishes no defense whatever to plaintiff's cause of action. Horn v. Mississippi River B.T. Ry. Co., 88 Mo. App. 469; Hope v. Blair, 105 Mo. 85; Cloud v. Inhabitants of Pierce City, 86 Mo. 357. (4) No court, not even a court of general and original jurisdiction, has any power, jurisdiction or authority to pass on or render judgment on any matter or issue that is not properly before it, and if such a court renders judgment on such a matter or issue not properly before it for decision, the judgment is void. Cox v. Cox, 101 Mo. 168; Jenkins v. Morrow, 131 Mo. App. 288. A judgment pleaded in bar, being a nullity, furnishes no defense whatever to plaintiff's cause of action. Hope v. Blair, 105 Mo. 85; Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Horn v. Mississippi River B.T. Ry. Co., 88 Mo. App. 469.
Fred L. Henley and Ward Reeves for respondent.
(1) The opinion and judgment of the Springfield Court of Appeals was right, but whether right or wrong, it was and is binding on the parties here as against the collateral attack now being made by the appellants. It is res adjudicata. State ex rel. v. Hughes, 148 S.W.2d 576; Hurt v. Edwards, 148 S.W.2d 542, 344 Mo. 24; State v. Ragland, 97 S.W.2d 113; Drainage District v. Ruddick, 64 S.W.2d 306; Smith v. Black, 231 Mo. 681; Hecker v. Bleish, 37 S.W.2d 444. (2) In a condemnation suit the only question on which either party was entitled to a jury trial was the question of damages, all other questions being questions of law. Railroad v. Pfau, 212 Mo. 398, l.c. 408; State ex rel. v. Bruce, 334 Mo. 312, 66 S.W.2d 847, l.c. 848. (3) It has been specifically held by this court that on the question of damages to be allowed in condemnation suits a jury may be waived. The judgment in this case as set out in our additional abstract of the record shows that a jury was waived. Drainage District v. Campbell, 154 Mo. 151. (4) The defendants in that case were not deprived of any constitutional rights under the due process clause under the holdings of the courts. Davidson v. Life Ins. Co., 151 Mo. App. 561; Canning Baking Co. v. Evans, 238 Mo. 599. (5) The only constitutional provision providing for a trial of condemnation damages by a jury is Article XII, Section 4, which requires a trial by a jury when requested by either side, if an incorporated company is a party. Under that provision of the Constitution the courts hold that it is inapplicable to a municipal corporation. Kansas City v. Vineyard, 128 Mo. 75; In re: Independence, 128 Mo. 272; City of St. Louis v. Smith, 325 Mo. 471. (6) There is one other section of the Constitution with reference to trial by jury, and that is Article II, Section 28, which provides that the right of trial by jury as heretofore enjoyed shall remain inviolate. That apparently is the provision of the Constitution relied upon by appellants. But our courts have held that the right of a jury trial is limited to cases in which that right was given under the common law and does not exist in condemnation proceedings by a municipal corporation against individuals. City of St. Louis v. Smith, 325 Mo. 471; St. Joseph v. Geiwitz, 148 Mo. 210; Plankroad Co. v. Pickett, 25 Mo. 535. (7) The trial court, all parties appearing as shown by the record, took up for consideration the mandate of the Springfield Court of Appeals in the condemnation suit, and the defendants could then have raised the question if they deemed the court of appeals had entered a void judgment; but since the question was neither raised in the Court of Appeals after the filing of the opinion or in the circuit court when the enforcement of the mandate was being considered, the defendants in that case (plaintiffs here) are concluded and bound and the matters are now res adjudicata. Hecker v. Bleish, 327 Mo. 377; Hurt v. Edwards, 148 S.W.2d 542. (8) The defendant in this case filed with its answer a crossbill or counterclaim alleging its title, ownership and right of possession in the property in question and also pleaded that the plaintiffs were in possession and claiming title and had refused to deliver possession upon demand to the defendant. Judgment went for the defendant, City of Caruthersville, on its crossbill or counterclaim, and no question of the correctness of that part of the judgment is made here by appellants, provided the judgment of the trial court against the plaintiffs on their petition was proper. However, the law authorizes such pleading and judgment on behalf of respondent in this case. Clark Real Estate Co. v. Old Trails Inv. Co., 335 Mo. 1237; Matthews v. Karnes, 320 Mo. 962; Matthews v. Citizens Bank of Senath, 329 Mo. 556.
In a suit to quiet title to certain land, judgment was rendered for the defendant, City of Caruthersville, by the circuit court of Pemiscot county, adjudging the title to be in the city as prayed in its crossbill, and plaintiffs have appealed.
We cull the following facts from the statement contained in appellants' brief. The land was formerly owned in fee simple by the appellants. It is situate within three miles of said city and adjoins Little Prairie Cemetery. In 1940 a suit was filed in said circuit court to condemn the land for public cemetery purposes as an enlargement of Little Prairie Cemetery. The plaintiffs in that suit were the City of Caruthersville and six individuals who were described in the petition "as constituting more than five persons of the public in interest who reside near and within the vicinity of Little Prairie Cemetery, a public cemetery and burial ground of the dead, owned, controlled and maintained by the City of Caruthersville; and that the individual plaintiffs compose and constitute the board of commissioners of Little Prairie Cemetery." A demurrer was filed to that petition by the defendants, now the present appellants, one of the grounds of demurrer being that there was a defect of parties plaintiff. The trial court sustained the demurrer as to the city and overruled it as to the individual plaintiffs. Then the court appointed commissioners who in due time filed their report as to the damages due defendants for the appropriation of their land. The defendants filed exceptions to the report and, a jury being waived, the matter was heard by the court, the report confirmed, the money ordered paid into court for defendants, and judgment rendered divesting title from defendants and vesting it in the individual plaintiffs for public cemetery purposes and the enlargement of Little Prairie Cemetery.
The city paid into court the amount assessed by the commissioners and approved by the court. The defendants, present appellants, have never accepted the money and still retain possession of the land. The city appealed from the judgment rendered pursuant to the court's order sustaining the demurrer to the petition as to the city, and the defendants appealed from the judgment condemning their land. Both appeals went to the Springfield Court of Appeals in a joint abstract and were decided by that court in one opinion. [City of Caruthersville v. Faris (Mo. App.), 146 S.W.2d 80.]
The court of appeals, after a thorough review of the Missouri statutes relating to cemeteries, concluded that Little Prairie Cemetery belongs to that class of cemeteries the public easement to which is vested in a city of the third class, in this instance in the City of Caruthersville; that the city had the power to enlarge such cemetery, when necessary, by condemnation of adjoining land; that the cemetery is not of that type which may be acquired or enlarged by five or more individuals representing the public. The court held that the trial court had erred in sustaining the demurrer to the petition, as to the city, and had also erred in overruling the demurrer as to the individual plaintiffs. Then the court remanded the case with directions to sustain the demurrer as to the individuals, to overrule it as to the city, and to divest the title out of the defendants and to vest it in the city for cemetery purposes only. The concluding paragraph [239] of the opinion is as follows:
"As the individual plaintiffs acted only as figure-heads and as representatives of the city, and as the money deposited in the court was the city's (this was admitted on the oral argument), the individual plaintiffs were merely improper parties, and the rights of the defendants were not prejudiced. Since this suit is a friendly one to determine the right of the city to condemn the defendants' property, the costs of the proceedings, including the costs in this court, should be taxed against the city. It is so ordered."
The defendants in that case, appellants in this, filed no motion for rehearing or to modify the opinion. When the mandate went down, the trial court corrected its judgment to conform with the directions of the court of appeals and the then defendants filed no motion for a new trial and took no appeal.
Later the defendants in the former suit brought the instant action against the city alleging, among other things, that the decision of the court of appeals and the judgment of the circuit court rendered in conformity therewith are void, but constitute a cloud on plaintiffs' title. Plaintiffs asked to have this cloud removed and the title revested in them. On judgment being rendered for the city, plaintiffs have appealed to this court.
Appellants contend that when the court of appeals decided that the trial court had erred in sustaining the demurrer to the petition as to the city, it should have remanded the case for a trial between the city and the property owners; that it had no power or jurisdiction to direct the trial court to enter judgment on the merits in favor of the city in the condemnation case; that the effect of the decision is to deprive appellants of their property without due process of law and to deprive them of the right to trial by jury as guaranteed by the State Constitution. That the decision of the court of appeals and the judgment of the trial court rendered in conformity therewith are void for want of jurisdiction.
On their main contention, appellants cite State ex rel. v. Smith et al., 176 Mo. 90, 75 S.W. 586, and State ex rel. v. Smith et al., 188 Mo. 167, 86 S.W. 867. In each of these cases an opinion of the Kansas City Court of Appeals was brought to this court by certiorari. In the first case, 176 Mo. 90, a complaint had been filed in the circuit court seeking to disbar an attorney. The defendant filed an affidavit for change of venue. This was overruled and the court proceeded to try the case and rendered judgment of disbarment. The defendant appealed to the court of appeals, which court held the trial court had erred in refusing to grant a change of venue and had thereby lost jurisdiction to try the case; but, as the court of appeals had original as well as appellate jurisdiction in that type of action, it proceeded to try the case de novo on the evidence contained in the record and rendered judgment of disbarment. On certiorari we held that, as the case was originally filed in the circuit court, the court of appeals acquired appellate jurisdiction only and ordered that court to reverse the judgment of the circuit court with direction to grant the change of venue. In the other case, 188 Mo. 167, the trial court sustained defendant's motion to dissolve a temporary injunction. The plaintiff appealed from this interlocutory order and the court of appeals reversed the judgment with directions to render a final judgment granting a permanent injunction to the plaintiff. We held that the court of appeals acquired jurisdiction of only so much of the case as was brought to it by the appeal and did not have jurisdiction to render a final judgment on the merits. Those cases were correctly decided, but are not in point here.
In each of those cases the decision of the court of appeals was assailed in a direct attack, while in the instant case the attack is made in a collateral proceeding. Of course, if the judgment is void, not merely erroneous, it may be treated as a nullity even in a collateral proceeding and a void judgment of an appellate court has no more validity than a void judgment of any other court. [Ralph v. Annuity Realty Co., 325 Mo. 410, 28 S.W.2d 662.]
However, we do not believe that the judgment of the Springfield Court of Appeals, now under consideration, was beyond the scope of its appellate jurisdiction on the record of the case then before it nor that its decision was either void or erroneous. In that case the petition was jointly filed by the city and the individual plaintiffs. Both the city and the individual plaintiffs were represented by the same attorneys and were seeking the same object, to wit, to enlarge a public cemetery "owned, controlled and maintained by the [240] city." The interest of the individual plaintiffs was not antagonistic to that of the city. In fact, the individual plaintiffs must have been mere agents appointed by the city to manage the cemetery, for they described themselves as a board of commissioners of a cemetery "owned, controlled and maintained" by the city. True, they also described themselves as "more than five persons of the public in interest who reside near and within the vicinity" of the cemetery, and may have done so out of abundance of caution to come within the terms of one of the statutes mentioned in the opinion of the court of appeals. But this latter allegation did not nullify the former one, nor indicate that the purpose of the individual plaintiffs was opposed to that of the city. Upon a consideration of the entire petition on demurrer, the question arose as to whether the suit should be brought by the city, by its agents constituting its board of commissioners, or by both the city and its agents jointly. After the demurrer was sustained as to the city, a jury was waived and the case proceeded to trial in the name of the individual plaintiffs, but they were still acting for and on behalf of the city with the object of enlarging a cemetery "owned, controlled and maintained" by the city. When the case reached the court of appeals, that court decided that the case should have been conducted in the name of the city, but, as it had been tried for and on behalf of the city and every legal right had been accorded to the defendants, there was no necessity of sending the case back for a new trial. In so deciding, the court of appeals did not transcend the scope of its appellate jurisdiction. It merely decided that on the record the title for cemetery purposes should be vested in the city rather than in the city's agents and directed the trial court to correct its judgment accordingly.
Notwithstanding the fact that the demurrer was sustained as to the city it continued as the real plaintiff, conducting the trial through its agents. The then defendants, present appellants, had a trial on the merits with the city as the real plaintiff and, therefore, have not been deprived of due process. Neither were they denied the right to trial by jury for they could and did waive that right. [Hecker v. Bleish, 327 Mo. 377, 37 S.W.2d 444.]
The city pleaded the decision of the court of appeals and the judgment of the circuit court rendered in obedience to that decision as res judicata in bar of appellants' alleged cause of action. The trial court correctly sustained the city's plea. [Hurt v. Edwards, 347 Mo. 667, 148 S.W.2d 542.]
Accordingly, the judgment is hereby affirmed. All concur.