Opinion
No. 42405.
November 12, 1951. Motion for Rehearing or to Transfer to Court en Banc Denied December 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF ANDREW COUNTY, FRED H. MAUGHMER, J.
Earl C. Borchers, Horace Merritt, St. Joseph, for appellant.
J.V. Gaddy, St. Joseph, Gene Thompson, Emmett Bartram, Maryville, for respondents.
Plaintiff sued for breach of a stipulation entered into between plaintiff and defendants in a prior law suit. Defendants answered and plaintiff replied. The trial court sustained defendants' motion for judgment on the pleadings and entered judgment for defendants. Plaintiff appealed.
The petition set out these facts: Instant plaintiff had sued instant defendants contesting the will of William F. Brand, plaintiff's father; during the trial of that case, the parties entered into a stipulation of settlement; by the terms of the stipulation, a judgment sustaining the will was to be entered and defendants were to pay plaintiff $25,600. Plaintiff's present cause of action is unequivocally based upon that stipulation.
Among the allegations of the petition were: "That on the 29th day of March, 1948, the said Clarence C. Brand, plaintiff herein, had then pending, on change of venue, in the Circuit Court of Nodaway County, Missouri, a suit contesting an alleged will of his father, William F. Brand, deceased; that on said date the defendants, and each and all of them, desiring to compromise said suit, did enter into a certain agreement and stipulation, in writing, and signed same. Copy of said stipulation, in writing, is hereto attached, identified as plaintiff's exhibit A, and by reference made a part hereof the same as if said stipulation were set out verbatim as the next and succeeding paragraphs hereof."
The stipulation provided: "That the plaintiff shall withdraw all the testimony offered by him in this cause and the cause shall be submitted to the court and jury on the preliminary proof offered by the proponents and that the court may either himself, or may direct a jury finding, that the paper writing (exhibit No. 1) is the last will and testament of William F. Brand, deceased."
The stipulation further provided that defendants would pay plaintiff $25,600 out of the assets of the William F. Brand estate, in full satisfaction of plaintiff's claims against such estate. The petition alleged that defendants had failed and refused to pay plaintiff any part of said $25,600.
Defendants' answer admitted the pendency of the will contest, the attempt to compromise and the execution of the stipulation and that defendants had not paid plaintiff any part of the $25,600. Defendants then alleged that, on March 29, 1948, a judgment was entered in the Circuit Court of Nodaway County as follows:
"Now on this March 29, 1948, and being a regular law day of the Circuit Court of Nodaway County, Missouri, above cause coming on for further hearing and come all of the parties hereto in person and by their counsel respectively and after the cause was heard in part and by agreement of parties, the jury is discharged and the cause considered by the court and the court finds the issues for the proponents and that exhibit A, the last will of William F. Brand, deceased, dated January 13, 1937, is in fact the last will and testament of said William F. Brand, deceased. * * *"
Defendants then alleged that on April 1, 1948, plaintiff filed a motion to set aside the stipulation and the March 29, 1948, judgment; that on April 16, 1948, defendants filed a reply to plaintiff's said motion in which they also requested the court to set aside said stipulation and judgment; and that, on the same day, the court entered the following judgment:
"Now, on this 16th day of April, 1948, at a regular session of the Circuit Court of Nodaway County, Missouri, the following order was made and entered of record in the above styled cause: Defendants file reply to contestant's motion, heretofore filed on April 1, 1948. The stipulation and judgment heretofore entered on March 29, 1948, are set aside and for naught held. The remainder of plaintiff's motion is overruled. A retrial before a new and different jury is directed."
The answer also set out: denial by this court of plaintiff's application for a writ of mandamus requiring the trial judge to set aside the April 16, 1948, judgment, retrial of the will contest suit, subsection of the will, and our subsequent dismissal of plaintiff's appeal in that case. Plaintiff's reply denied all such allegations. Accordingly, in ruling the propriety of the trial court's action in sustaining defendants' motion for judgment on the pleadings, we do not consider these disputed factual issues. See McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, and cases cited therein. And see Zimmerman v. Jones, Mo.App., 236 S.W.2d 401.
In his reply, plaintiff first denied "each and every affirmative allegation, matter and thing contained" in the defendants' answer. However, in "further replying," plaintiff admitted entry of the two judgments. He specifically referred to "the entry of the judgment of the Circuit Court of Nodaway County, Mo., on March 29, 1948" and "the judgment or decree entered by the Circuit Court of Nodaway County, Mo., on March 29, 1948." He specifically referred to "the purported judgment of the Circuit Court of Nodaway County, Mo., rendered and entered of record on April 16, 1948," and "the action of the Circuit Court of Nodaway County, Mo., had and taken on April 16, 1948."
The admission of a fact supercedes any denial of such fact contained in a general denial. 71 C.J.S., Pleading, § 160, p. 330; Fleming v. Joseph F. McMahon Contracting Corporation, Mo.App., 45 S.W.2d 952, 955. And see Farmers Traders Bank v. Kendrick, 341 Mo. 571, 108 S.W.2d 62, 64.
(The reply denied both the court's jurisdiction to enter the April 16, 1948, judgment and the identity of issues and relief sought. While not decisive here, we observe that defendants' motion for judgment on the pleadings did not admit these conclusions of law. A movant in such a motion admits only facts well pleaded by his adversary, not his adversary's conclusions of law. Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936.)
Plaintiff's admission of the rendition of the April 16, 1948, judgment (setting aside both the stipulation, and the March 29, 1948, judgment entered in accordance with its terms) was fatal to plaintiff's claim based upon the stipulation. The April 16, 1948, judgment was valid on its face. "A judgment is presumed to be valid, until vacated by proper proceedings instituted for that purpose, where the judgment is one within the jurisdiction of the court rendering same." Lewis v. Lewis, 238 Mo.App. 173, 176 S.W.2d 556, 560. The pleadings affirmatively show that, upon the entire record, the court which rendered that judgment had jurisdiction of the subject matter (proceedings incident to a will contest — Sec. 468.580, RSMo 1949, Sec. 538, Mo.R.S.A.) and of the parties.
The judgment was rendered in the course of the very action which plaintiff himself had instituted. So far as appears from the pleadings, that judgment was final, was not appealed from and has never been directly attacked. Such a judgment, not void upon the face of the record, may not be collaterally attached. See Caruthersville School Dists. No. 18 of Pemiscot County v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6, and cases cited therein. Other allegations of plaintiff's reply amounted to a collateral attack upon the April 16, 1948, judgment.
The facts alleged and admitted by the pleadings show that the stipulation upon which plaintiff relied was "set aside and for naught held" in the same will contest proceeding which the parties sought to compromise by executing the stipulation. These facts, as a matter of law, constituted a complete bar to plaintiff's claim. Defendants' motion for judgment on the pleadings was properly sustained. Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936.
The judgment is affirmed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.