Opinion
No. 28135.
April 17, 1951.
APPEAL FROM THE CIRCUIT COURT, CAPE GIRARDEAU COUNTY, R.B. OLIVER III, J.
J. Grant Frye, Cape Girardeau, for appellant.
R.P. Smith, Cape Girardeau, for respondents.
Plaintiff has appealed from a judgment dismissing her petition on the ground that said petition did not state a claim upon which relief could be granted. The facts which appear from the petition are as follows:
On August 16, 1948, defendants, Carl Welker and Geneva Welker, recovered a judgment in the Cape Girardeau Court of Common Pleas against plaintiff in the sum of $1,100 and costs. Plaintiff filed a timely motion for new trial, which motion was by the court overruled on November 10, 1948. On November 18, 1948, plaintiff filed her notice of appeal from said judgment and, thereafter, perfected her appeal in this court. No appeal bond was given. Pending said appeal, and on January 18, 1949, Carl Welker and Geneva Welker caused an execution to be issued in said cause, returnable to the February Term, 1949, of said court. Pursuant to said execution, certain real estate belonging to plaintiff was levied upon and sold by the sheriff of Cape Girardeau County on February 28, 1949, to Alice Hartle for $1,196.19. The proceeds of said sale were disbursed as follows:
"$1,133.00 as debt and interest on the judgment to Carl Welker and Geneva Welker;
"24.59 as costs to the Clerk of Cape Girardeau Court of Common Pleas;
"4.60 to the Southeast Missourian for Publication fees for Notice of Levy;
"29.00 to Alvin F. Klaus, Sheriff, for fees and commission;
"5.00 to Maude Pankey as excess over judgment and costs."
On December 20, 1949, this court, by its opinion filed on that date, 225 S.W.2d 505, ordered the judgment reversed and the cause remanded for further proceedings to be had in conformity with said opinion. By its mandate, dated January 16, 1950, this court ordered said judgment reversed and the cause remanded, and that appellant (plaintiff herein) "be restored to all things she has lost by reason of the said judgment * * * and that the said appellant recover of the said respondents the costs of this appeal." Costs in the sum of $55.60 were taxed in favor of said appellant. Said mandate was sent to the Clerk of the Cape Girardeau Court of Common Pleas on January 16, 1950.
Thereafter, and on March 3, 1950, Maude Pankey (plaintiff herein) filed in said Court of Common Pleas her motion for restitution, which was as follows:
"Defendant moves the court to require plaintiffs to restore defendant to her former status in accordance with the mandate of the Court of Appeals, and to post security for costs, and says that plaintiffs are without means to pay the costs and there are a great amount of costs already accrued and taxed against them which they have not paid; and that on execution pending the appeal, plaintiffs sold her real estate under execution and received $1,100.00 in cash plus $95.00 costs."
Thereafter, the foregoing motion was considered by the court and, on March 3, 1950, the court sustained said motion and ordered: "This * * *. The court having heard the motion finds that defendant appealed from the prior verdict and judgment herein to the St. Louis Court of Appeals without executing and filing a supersedeas bond on appeal, and that pending the appeal, the plaintiffs procured an execution to be issued on such judgment and costs. The court further finds that the amount which plaintiffs received net, pursuant to such execution sale, was $1,100.00, and that the costs of the proceedings including the sale were also paid out of such sale in the sum of $95.11, and find that the costs taxed on appeal by the appellate court in favor of defendant were $55.60, totaling $1,250.71, which amount the court orders restored to defendant under the mandate of the St. Louis Court of Appeals on or before the trial date or not later than April 1st, 1950. * * *"
In said order the plaintiffs, Carl Welker and Geneva Welker, were ordered to give security for costs in said cause.
On March 30, 1950, upon motion of Carl Welker and Geneva Welker, the court entered the following order: "For good cause shown, plaintiffs are hereby granted an additional thirty days from April 1st, 1950, within which to comply with this Court's order of March 3 requiring restitution in the amount of $1,250.71 to be made to Defendant."
Carl Welker and Geneva Welker did not comply with the order of restitution, nor did they furnish security for costs in said cause, and, on May 22, 1950, the court, on account of said failure to comply with said order, dismissed said suit.
Carl Welker and Geneva Welker thereafter filed a motion for new trial, which motion was by the court overruled. No appeal has been taken by Carl Welker and Geneva Welker from any of the orders herein before mentioned. Carl Welker and Geneva Welker have not complied with the order of restitution. The prayer of plaintiff's petition was for damages in the sum of $2,000.
Defendants' motion to dismiss was based on the theory that the order of restitution was a bar to any independent action seeking the same relief.
The trial court properly sustained the motion to dismiss. A person entitled to restitution may secure it in an independent action, or proceed by motion in the cause. He is not entitled to both remedies. A case in point is Drescher Rotberg Co. v. Landeker, 82 Misc. 441, 143 N.Y.S. 1050, 1051. In that case plaintiff brought an action against defendant in the City Court. The trial resulted in a verdict for plaintiff, which verdict was afterward set aside by the trial judge. The court also dismissed plaintiff's petition and taxed the costs against it. These costs were collected on execution. Plaintiff then appealed and the judgment dismissing its case was reversed. Plaintiff then filed a motion for restitution, which motion was denied with leave to renew the same after the final determination of the action in the City Court. Thereupon plaintiff brought an independent action for the same relief, and obtained a judgment. This judgment, on appeal, was reversed The Court said:
"It was conceded upon the trial of this action that the action in the City Court is still pending undetermined. The claim of the appellant herein is that the order of this court denying the plaintiff's motion for an order of restitution precludes the plaintiff from bringing an action in the Municipal Court until the final determination of the City Court action. In this contention we agree. The decision of the motion for restitution is in the nature of a judgment, and it has been held that under certain circumstances the granting of such an order is imperative. Lott v. Swezey, 29 Barb. 87. Had the order been granted, it could have been enforced by execution. The decision of the motion could not have been made by this court without involving the particular matter in controversy in the Municipal Court, and therefore the right of the plaintiff to the relief asked for must be deemed to have been settled until another or different situation arose. To litigate the matter again would be to impeach the first decision. Williams v. Barkley, 165 N.Y. 48, 58 N.E. 765; McCall [Co.] v. Wright, 135 App. Div. 424, 119 N.Y.S. 1011.
"There is no doubt that the result of a litigation which takes the form of a motion may constitute a bar to another action involving the same question. Everett v. Everett, 180 N.Y. [452], 461, 73 N.E. 231. That in the first instance the plaintiff had a right of either form of action cannot be doubted (Kidd v. Curry, 29 Hun [215], 216); but, having elected to resort to its motion, it is bound by the decision thereon. * * *"
See also, Marlee, Inc. v. Bittar, 257 N.Y. 240, 177 N.E. 434; and Duncan v. Kirkpatrick, 13 Serg. R., Pa. Sup.Ct., 292.
In our opinion, the order of restitution in the case at bar was a final judgment enforceable by execution, and a bar to the present action. The judgment appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.