Zeitinger v. Hargadine-McKittrick Dry Goods Co.

10 Citing cases

  1. Estate of Kent

    6 Cal.2d 154 (Cal. 1936)   Cited 36 times

    Active parties to the litigation may bind passive parties by stipulation. ( State v. Mart, 135 Or. 603 [ 283 P. 23, 295 P. 459]; Zeitinger v. Hargadine etc. Co., 309 Mo. 433 [ 274 S.W. 789].) [4] "While a judge pro tempore is selected under the stipulation of the parties litigant by the approval and order of a `regular' judge, still, when acting, the judge pro tempore is acting for the superior court.

  2. Hecker v. Bleish

    37 S.W.2d 444 (Mo. 1931)   Cited 7 times
    In Hecker v. Bleish, 327 Mo. 377, 37 S.W.2d 447, this court followed that rule and quoted that language of the McLure case, that all matters were concluded in the former appeal, "and, having become res adjudicata cannot be reopened on this appeal."

    Rees v. McDaniel, 131 Mo. 681; Meyer v. Bobb, 184 S.W. (Mo.) 405; Scullin v. Railroad, 192 Mo. 1; Atkinson v. Dixon, 96 Mo. 577. (3) The only jurisdiction of the circuit court in this cause, after the mandate of the Supreme Court was returned to it, was to carry out the mandate of this court. Gary Realty Co. v. Swinney, 317 Mo. 687; Zeitinger v. Dry Goods Co., 309 Mo. 433, 455; Essey v. Bushakra, 304 Mo. 231; State ex rel. Carson v. Lamb, 232 S.W. (Mo.) 985; Scullin v. Railroad, 192 Mo. 1; Orvis v. Elliott, 147 Mo. 231. (4) Since this cause was remanded by the Supreme Court with specific directions as to further proceedings, the trial court had no authority to do anything beyond or not embraced in the specific directions. It had no power to enter any other judgment or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters, except the single one set out in those directions, were concluded by the judgment of this court. Rees v. McDaniel, 131 Mo. 681; State ex rel. Robertson v. Kelly, 293 Mo. 297; Zeitinger v. Dry Goods Co., 309 Mo. 433; First National Bank v. Franklin Bank, 233 S.W. (Mo.) 13; Murphy v. Barron, 286 Mo. 390; McClure v. Bank, 263 Mo. 128; Keaton v. Jorndt, 259 Mo. 179; Tourville v. Railroad, 148 Mo. 623; State ex rel. v. Edwards, 144 Mo. 467; Fanning v. Doan, 146 Mo. 100; Young v.

  3. Ralph v. Annuity Realty Co.

    28 S.W.2d 662 (Mo. 1930)   Cited 11 times

    Lewis v. Hargadine-McKittrick Co., 305 Mo. 414. (c) The alleged cause of action sued upon was res adjudicata. Zeitinger v. Hargadine-McKittrick Co., 309 Mo. 433. RAGLAND, J.

  4. St. Louis Southwestern Ry. Co. v. Meyer

    364 Mo. 1057 (Mo. 1954)   Cited 14 times
    In St. Louis Southwestern Railway Co. v. Meyer, 364 Mo. 1057, 272 S.W.2d 249, 252, 46 A.L.R.2d 964, this Court considered the same question. Dividends of plaintiff became a subject of dispute between its preferred and common stockholders, and plaintiff deposited such funds into a special account with a depository within the territorial jurisdiction of the Court, and then filed an interpleader action.

    Any issue as to the validity of the service by publication is now moot in view of the appearances of representative groups of preferred and common shareholders. Davison v. Hough, 165 Mo. 561, 65 S.W. 731; Jack Toner v. M. Ft. D.R. Co., 49 Iowa 627; National Hairdressers Cosmetologists' Assn., Inc. v. Philadelphia Co., 41 F. Supp. 701; State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145; President, etc. of Bowdoin College v. Merritt, 59 F. 6; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 309 Mo. 433, 274 S.W. 789; Kaufmann v. Annuity Realty Co., 301 Mo. 638, 256 S.W. 792; Secs. 507.070, 509.260, 509.290, 509.330, 509.340, RSMo 1949; Missouri Supreme Court Rule 3.07. (11) Service by publication was entirely valid since the action solely affects a fund or trust within the jurisdiction of the court. Sec. 56.160, RSMo 1949.

  5. Barnes v. Boatmen's Natl. Bank

    355 Mo. 1136 (Mo. 1947)   Cited 8 times
    In Barnes, the relevant issue was whether the circuit court had jurisdiction to set aside an order issued by the probate court.

    Prasse v. Prasse, 342 Mo. 388, 115 S.W.2d 807; Aetna Life Ins. Co. v. Hyde, 327 Mo. 115, 34 S.W.2d 85. (4) The mandate of the Supreme Court was peremptory and binding on all lower courts. Zeitinger v. Hargadine-McKittrick D.G. Co., 309 Mo. 433, 274 S.W. 789; Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43; Wise Coal Co. v. Columbia Zinc Lead Co., 143 Mo. App. 587, 128 S.W. 232; Meyer v. Bobb, 184 S.W. 105; Aetna Ins. Co. v. Mo. Pac., 132 Mo. App. 608, 112 S.W. 31; Ward v. Haren, 183 Mo. App. 569, 167 S.W. 1064; Bagnell Timber Co. v. Railway Co., 242 Mo. 11, 145 S.W. 469; State ex rel. Roberts v. Kelly, 293 Mo. 297, 239 S.W. 867; Powell v. Bowen, 240 S.W. 1085; Meyer v. Campbell, 12 Mo. 603; State ex rel. Fowler v. Chaney, 49 Mo. App. 511. (5) The principles of res judicata apply to questions of jurisdiction as well as to other questions. Courts speak by their judgments and not by an incidental statement of reasons assigned therefor and such reasons or the absence of such reasons do not constitute part of the judgment.

  6. Creason v. Harding

    344 Mo. 452 (Mo. 1939)   Cited 21 times

    That plaintiff's attorney's lien may be established in equity for his fees collected by defendant's and remanded the case for the trial court to do a specific thing, namely to have Harding, Murphy Stinson render an accounting "of fees collected by said defendants after the death of Deatherage, as indicated above." Keeton v. Jarndt, 259 Mo. 190; Marston v. Catterlin, 290 Mo. 153, 234 S.W. 818; Zeitinger v. Hargadine D.G. Co., 309 Mo. 433, 274 S.W. 789; Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415; Coleman v. Northwest Mut. Life, 233 S.W. 187; Bushman v. Barlow, 316 Mo. 916, 15 S.W.2d 332; Moss Tie Timber Co. v. Allen, 19 S.W.2d 23; Sheppard v. Wagner, 240 Mo. 442; Stone v. Railroad Co., 261 Mo. 78, 169 S.W. 88; Spring v. Grefing, 315 Mo. 529, 289 S.W. 827; Hamilton v. McLean, 169 Mo. 73, 68 S.W. 936; Donnell v. Wright, 147 Mo. 647, 49 S.W. 874; State ex rel. McGrew Coal Co. v. Ragland, 97 S.W.2d 115; Flynn v. Kinealy, 95 S.W.2d 1212; Wors v. Tarlton, 95 S.W.2d 1207. On the former appeal of this case, this court held that since defendants claimed that they were entitled to all of the recoveries against the four railroads in question, they could not invoke the defense that plaintiff could recover in any event upon quantum meruit.

  7. Kansas City v. Markham

    339 Mo. 753 (Mo. 1936)   Cited 6 times

    This court cannot on appeal from a refusal to vacate the interlocutory order appointing a receiver decide the main branch of the case, but will determine whether the bill is sufficient to call into action the power of the court to make the order; for the appointment of the receiver was only incident to the relief sought. [Tuttle v. Blow, 163 Mo. 625, 643, 63 S.W. 839; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 309 Mo. 433, 453, 274 S.W. 789.] The object of the suit, or the final relief as stated in the bill, is a "permanent injunction, restraining and enjoining defendants from lending money at a rate of interest greater than that permitted by the laws of the State of Missouri;" such restraint operating purely in personam and in no respect in rem. The subject matter of the suit is the state of facts that gave rise to respondent's alleged right to perpetual injunction.

  8. Duval v. Duval

    291 S.W. 488 (Mo. 1927)   Cited 8 times

    (1) Opinion of the Supreme Court in Faris v. Ewing, 183 S.W. 280. See Sec. 2535, R.S. 1909; Sec. 1970, R.S. 1919; Ball v. Woolfolk, 175 Mo. 278; Putnam Co. Supply Co. v. Mendote Mining Co., 285 S.W. 409; Bigelow on Estoppel, p. 170; Chouteau v. Gibson, 76 Mo. 38; Freeman on Judgments (5 Ed.) sec. 639. (2) Judgment of the Circuit Court of Clinton County. See: Sec. 2085, R.S. 1909; Sec. 1516, R.S. 1919; Scullin v. Railroad, 192 Mo. 1; Zeitinger v. Dry Goods Co., 309 Mo. 433. (3) Plaintiff Minnie I. Duval is not barred by suit brought in Ray County in 1898 by William N. Ewing and wife. (4) Plaintiff Minnie I. Duval is not estopped by covenants of warranty in deed of trust she executed with her husband in 1886. Sec. 669, R.S. 1879.

  9. Landers v. Smith

    379 S.W.2d 884 (Mo. Ct. App. 1964)   Cited 36 times
    Holding that the failure to assert a compulsory counterclaim in a prior action between the same parties does not preclude a compulsory counterclaim in a later action if the prior action was dismissed on a stipulation reserving the claim

    Keller v. Keklikian, supra, 362 Mo. at 926, 244 S.W.2d at 1004 [2, 3]; Hansen v. Ryan, Mo., 186 S.W.2d 595, 600 [6]; Early v. Smallwood, 302 Mo. 92, 106, 256 S.W. 1053, 1055-56 [2]; Casler v. Chase, 160 Mo. 418, 425, 60 S.W. 1040, 1041-42; Short v. Taylor, 137 Mo. 517, 526, 38 S.W. 952, 954. For examples, see Berry v. Chitwood, Mo., 362 S.W.2d 515, 518 [9]; Corder v. Morgan Roofing Co., 355 Mo. 127, 141, 195 S.W.2d 441, 448 [11]; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 309 Mo. 433, 457, 274 S.W. 789, 797 [6]; Casler v. Chase, supra, n. 8, 160 Mo. at 425, 60 S.W. at 1041-1042; General Motors Acceptance Corp. v. Van Ausdall, 241 Mo.App. 499, 507, 249 S.W.2d 1003, 1007 [7]; Maryland Casualty Co. v. Dobbin, 232 Mo.App. 557, 568, 108 S.W.2d 166, 172 [1]; Carpenter v. City of Versailles, Mo.App., 65 S.W.2d 957, 958 [2, 3]; Gregg v. Kroensbein, Mo. App., 209 S.W. 113, 115 [6]. See Short v. Taylor, supra, n. 8, 137 Mo. at 526, 38 S.W. at 953-954 [3].

  10. In re Kent’s Estate

    50 P.2d 457 (Cal. Ct. App. 1935)   Cited 1 times

    Active parties to the litigation may bind passive parties by stipulation. State ex rel. Brookfield Co. v. Mart, 135 Or. 603, 283 P. 23, 295 P. 459; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 309 Mo. 433, 274 S.W. 789. While a judge pro tempore is selected under the stipulation of the parties litigant by the approval and order of a "regular" judge, still, when acting, the judge pro tempore is acting for the superior court.