State Ex Rel. Gatewood v. Trimble , 333 Mo. 207 ( 1933 )

I concur in the principal opinion, which holds that on the assignments of error made by the relator and the particular facts of the case the opinion of the Kansas City Court of Appeals should not be quashed. However, a few words more are necessary to give the reasons for my concurrence.

The relator contends first that the opinion of the Court of Appeals is in conflict with Macon County v. Farmers' Trust Co.,325 Mo. 784, 29 S.W.2d 1096, in that the latter case ruled claims for a preference against a failed bank may be made at any time before payment of a dividend is ordered. The case does not so hold. It dealt only with questions of limitation. It was there decided that the county's suit to establish priority of its claim was not barred by Section 5333. Revised Statutes 1929 (Sec. 11716, R.S. 1919), Section 5337 (Sec. 11720, R.S. 1919), or any of the other statutes in the Banking Act except Section 5339 (Sec. 11722, R.S. 1919); and that under the last-named section "it would seem that the right of a claimant to assert priority for his claim, already duly filed, should not be barred by limitation" if made before the circuit court had made an order authorizing the payment of dividends. But to say a claim will not be barred by limitation if it be filed within a certain period is not by any means equivalent to saying it always may be filed within that period in any event and at all hazards.

Ordinarily statutes of limitation do not confer any right of action but merely restrict the period within which a right may be asserted. [37 C.J., sec. 2, p. 684.] They affect the remedy not the right. They are defensive only, and cannot be made the basis for affirmative relief. [Stock v. Schloman, 322 Mo. 1209, 1217,18 S.W.2d 428, 432.] Sometimes, when the very statute giving the right of action also fixes the time for its enforcement, the limitation will be considered a part of the right, itself, 37 C.J., sec. 51, p. 732; State of Kansas ex rel. v. U.S.F. G. Co., 328 Mo. 295, 301, 40 S.W.2d 1050, 1053. Sometimes, again, a statute may confer a right of action in such terms as that a party will not be barred by the doctrine of res judicata from asserting it even though he has previously prosecuted a suit against the same party in which the claim might have been set up. In other words the statute will be construed as preventing a merger of the two causes of action. [34 C.J., sec. 1163, p. 753.] The Macon County case did not go into any of these questions; so far as it touches them it apparently views the statutes mentioned as pure Statutes of Limitation — though that point is, as we had said, not decided.

[1] On the other hand, the opinion of the Kansas City Court of Appeals in this case does not decide, or purport to decide, any question of limitation. It deals exclusively with that branch of the doctrine of res judicata called estoppel by judgment. It makes no effort to construe the banking statutes, except where it says "we hold it not to be the law that a claim must first be reduced to a judgment and then the court having jurisdictionshall, at some future date, pass upon the question of preference. . . ." (Italics ours.) In other words, so far as the statutes are concerned, the Court of Appeals opinion declared nothing save that the law does not require a claim to be reduced to judgment in one case and questions of priority to be determined afterward in a separate proceeding. In effect it amounted to saying the provisions of the statutes do not prevent the application of the doctrine of res judicata or forbid a merger under that doctrine of a suit for the allowance of a claim and a suit to establish priority of the claim. This court has never passed on that question so far as we are advised.

[2] The doctrine of estoppel by judgment operates as a bar byestoppel. It is a rule separate and apart from Section 5339, if the latter is a Statute of Limitation and not an enabling statute. It does not annex a condition to the statute, itself, and if the doctrine had not been invoked by the defendant in this case it would seem the relator's claim could have been freely prosecuted within the statutory period of limitation, for all that the Kansas City Court of Appeals says in its opinion. This illustration will serve to show the doctrine of estoppel by judgment and a Statute of Limitation are wholly different things. Suppose a man should bring suit on a cause of action and be defeated, and then bring a second suit on the same cause of action introducing new issues which he might have raised in the first suit: would it be said he could thus split his cause of action and successfully resist the application of the doctrine merely because under some Statute of Limitation he still had time to sue on the claims thus brought in? We refer to all these matters without deciding them merely to show the Macon County case is not in point on the questions decided by the Court of Appeals.

The relator's second contention that the opinion of the Court of Appeals contravenes our ruling in Hecker v. Bleish,319 Mo. 149, 3 S.W.2d 1008, is founded on a further misapprehension of the effect of the doctrine of estoppel by judgment. The Hecker case holds a judgment which ranges beyond the issues made by the pleadings is to that extent coram non judice and void. In applying that principle to the instant case the relator contends that since the Court of Appeals opinion holds the judgment of the Jackson County Circuit Court allowing his claim as a general claim was conclusive against his second suit to establish priority of the claim, therefore by necessary inference the judgment operated as an adjudication of the nonpriority of his claim when no such issue was raised in that case. If this is so, says the relator, the judgment went beyond the issues and under the Hecker case was void.

[3] But such is not the law. The doctrine of estoppel by judgment does not make the judgment in a former action operate as an actual adjudication of issues that might have been raised but were not. It merely estops the party from bringing a second suit on the same cause of action. [State ex rel. Gott v. Fidelity Deposit Co., 317 Mo. 1078, 1092, 298 S.W. 83, 90; 34 C.J., sec. 1154, p. 742.] If relator's theory were correct the doctrine never could be invoked against new issues introduced in a second suit on the same cause of action, because insofar as the judgment in the first suit "adjudicated" them it would be void under the rule announced in the Hecker decision, since they had not been raised in that suit; and a void judgment cannot be made the basis of an estoppel by judgment. [34 C.J., sec. 1183, p. 768.]

In view of the importance of the questions involved — procedural law governing the liquidation of failed banking institutions — I think we should make it entirely clear (as the principal opinion probably has already done) that we are not underwriting the opinion of the Kansas City Court of Appeals, or holding one way or the other on the correctness of its conclusions. We are ruling the case only on the assignments of conflict made by the relator.