# Opposition Brief — Moffett v. Commerce Trust Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0161%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1946 - **Citation:** 329 U.S. 669 ## Text ir bz fee «thd TESEREZEE oy FILA JUL 19 1946 eae A SUPREME COURT OF THE UNITE 4 OCTOBER TERM, 1946 No. 318 LOUISE McGREW MOFFETT axv LOUISE McGREW MOFFETT as Execuraix or tue Estate or Tuomas 8. Morrett, Deceasep, on Appellants, COMMERCE TRUST COMPANY, a Corporation, HELEN WEEDE, B. C. HOWARD, ax» WILLIAM H. KOPP APPEAL FROM THE SUPREME COURT OF THE STATE OF MISSOURI STATEMENT OPPOSING JURISDICTION AND MOTION TO DISMISS OR AFFIRM Joun T. Harprna, Davin A. Murpny, * R. Carrer Tucker, Joun Murpnry, » Water A. Raymonp, Counsel for Appellee, Helen Weede; Cuaries M. BuackMar, y James E. Goopricn, Huon M. Hiiier, Evoeens E. Bowers, Counsel for Appellee, Commerce Trust Company ; Ww. Dennis Busn, Counsel for Appellee, B. C. Howard; Gusew A, Wispom, Counsel for Appellee, William H. Kopp. ELEED THROUGH= POOR COPY INDEX Sussect Iwpex Page Appellees’ suggestion opposing jurisdiction... ... 1 ONIN nn CAC dries aikbls cdbd sce sence: 1 Foreword to Discussion—Appellants have failed to show jurisdiction........................ 2 I. The contention that this Court ac- quired jurisdiction by reason of the alleged point that Section 948 R. S. Missouri 1939 is violative of Section 10 Artice I of the Constitution of the United States is so clearly without foundation as to present no substantial or colorable federal question. The judgment rendered herein in conformity to said section was not upon the merits and is no bar to the commencement of another RE Ee a 6 II. There is no provision of the Constitu- tion or Statutes of the United States which gives the Appellants the right to maintain jointly in the courts of Missouri, the instant suit for their alleged cause or causes of action and no rights under the Constitution or laws of the United States were denied to Appellants by the holding of the court that there was a misjoinder of parties en ae eee 22 III. Appellants’ claim that the demurrers to the Fifth Amended Petition were sustained without notice or hearing is not sustained by the record... __. 30 IV. Appellants’ contention that the Mis- souri Supreme Court erred in not —6417 ii INDEX Page deciding the case on appeal under the new Code of Civil Procedure al- though the case was tried below under the old code before the effec- tive date of the new code is without merit and raises no federal ques- OD so es Messi te lawtas Aree 34 V. There was no error by Division I of the Supreme Court of Missouri in denying the application of Appel- lants for transfer of the instant cause to the Supreme Court of Mis- souri en banc; Appellants could not claim such transfer as a matter of right ; and there was no violation of the equal protection clause of Sec- tion 1 of Amendment XIV to the United States Constitution. __. 44 VI. The records show that “‘most if not all’’ of the questions referred to by the Missouri Supreme Court on page 592 of its opinion in 193 8. W. (2d) 588, and also many other ques- tions raised by Appellants on this appeal have been decided adversely to Appellants by courts of compe- tent jurisdiction in suits brought by Appellants or in which they actively participated, and that Appellants have not only had their day in court but their months and years 52 VII. Judicial Notice—(a) This court will take judicial notice of its records in former cases companion to and in- ter-related with the instant case, and growing out of transactions pleaded in the instant case, where this Court has denied certiorari on such former cases. (b) The Su- preme Court of Missouri in the in- stant case was entitled to take judi- ELEED THROUGH POOR COPY E: cial notice of its own records in former cases closely interwoven with, companion to and interde- pendent with the instant case and to take judicial notice of the public statutes and judicial decisions of the State of Kansas pleaded in the instant action. (c) The Circuit Court of Jackson County, Missouri, in the instant case was entitled to take judicial notice of all prior pro- ceedings of said Circuit Court and of any divisoin thereof in the in- stant case, all of the divisions thereof constituting but a single VIII. Appellants’ Assignment of Error OE Eee a re 78 1X. In Appellants’ First Assignment of Error (see also page 5, Appellants’ Jursidictional Statement it is claimed that the Supreme Court of Missouri, 193 S. W. (2d) 588, de- nied Appellants their constitutional rights by holding that ‘‘the petition did not state a cause of action.’’ The opinion itself (1. c. 592) shows ET PO oy TS ee 82 X. Comanche Case. Helen Moffett v. T. 8S. Moffett, et al., 131 Kan. 546; same, 283 U.8.826............:.. 91 XI. Jurisdiction is not vested in this Court by reason of Appellants’ charge that Appellee instituted and maintained fictitious suits in the state courts alleged -to be pursuant to an unlawful conspiracy... _.... 95 XII. Appellants are completely in error in in the contention that there is a right of action for conspiracy alone, inde- iv INDEX Page pendent of the damage caused by specific acts in furtherance of the conspiracy, either under the Stat- utes of the United States or of the State of Missouri. The ‘‘mere force of numbers’’ doctrine can have no application in the instant case ... 98 XIII. Appelants’ charge of libel ....... 101 XIV. Appellants complain that the opinion of the Supreme Court of Missouri, 193 S. W. (2d) 588, denied Appel- lants their constitutional rights by giving validity to the acts of those we will hereafter denominate as de facto judges. Appellants claim that those judges were illegally ap- pointed and their acts are void _. 106 XV. Possible repetition is regretted .... 108 Motion to Dismiss or Affirm...................... 109 In the ‘‘Suggestions’’ pages of printed records in Missouri Supreme Court ar? indicated thus: in the instant case (312); in ihe Howard Fee Case, 345 Mo. 741; 137 S. W. (2d) 507, SN hide daabevdedeldntar Ks, Wiss avewrciada 110 DI cae naititiin tks tte hd Zod hdd + * wo vwkas 110 Moffett v. Moffett, et al., 131 Kan. 582, 292 Pac. REET ESS REITER Cee 58, 69, 86, 106 Grace Torrance Clark, et al. v. Helen Moffett, et al. 136 Kan. 711, 18 Pac. (2d) 585... 72 Moffett et al. v. Robbins, 81, F (2d) 431, 16, 54, 55, 59, 60 Louise McGrew Moffett et al. v. R. O. Robbins, Administrator, 14 Fed. Supp. 602........... 72 Specification of Errors contained in a Petition for Writ of Certiorari to review the decision of the Supreme Court of Kansas in the case of Clark v. Moffett, 136 Kan. 711, filed in United States Supreme Court on or about June 23, 1933, and docketed therein as cause Be Ri dkadey dat 110 ELEED THROUGH= POOR COPY IN DEX v Specification of Errors contained in a Petition for Writ of Certiorari to review the decision of the Tenth Circuit Court of Appeals in the case of Louise McGrew Moffett v. R. O. Rob- bins, Administrator, 81 F. (2d) 431, filed in the United States Supreme Court on April 11, 1936, and docketed therein as cause No. 918... 110 Tasiz or Cases Crrep Akins v. Hicks, 109 Mo. App. 96,838. W.75........ 23 Alaska Packers Association v. Industrial Acct. Com., eee | Ye le eee ee 9 A.,T. € 8. F. R. Co. v. Railroad Com., 283 U. S. 380, OD Ue, ME S45 Pk eee unas ees oe veo ee ses 50 Amber v. Choteau, 107 U.S.586 ................... 87 Anderson National Bank v. Luckett, 321 U. 8. 233, 88 me F 4 FR Sa pe errr 10 Anson v. Tietze, 190 S. W. (2d) 193................ 40 Aspen Mfg. & Smelting Co. v. Billings, 150 U. S. 31, gg kB PRS ERS ey ae eee eS 74 Aufderheide v. Ice € Fuel Co., 319 Mo. 337, 4 8. W. ME Oy apc hee Sieh ees tet en share nib aes 09 49 Baucke v. Adams, 188 S. W. (2d) 355 .............. 100 Beardslee v. Morgner, 73 Mo. 22 .................. 8 Beattie Mfg. Co. v. Gerrardi, 2148S. W.189......... 90 Bell v. Hood, 90 Fed. Adv. sheets 758, 90 L. Ed. 758, eG Ge Ib 0g Fore dntas Cibaks connte s+ 17, 27 Bennett v. Railway Co., 105 Mo. 642, 16 S. W. 947... 49 Bennett v. Southern Bank of Mexico, 61 Mo. App. 297 Oy Oi MR tas oi bas Vid Ge Beek acne oc a 75 Brady v. Daly, 175 U. 8S. 148, 44 L. Ed. 109......... 13 Brawner v. Irvin, 169 Fed. 964.................... 99 DG, TOG, ae ie es a oa bo deb Vacca emetic... 108 Case v. Smith, 215 Mo. App. 621, 257 S.W.148...... 78 Central Vermont Ry. Co. v. White, 238 U. 8. 507.... 3 Clark v. Andrews, 136 Kan. 123, 13 Pac. (2d) 294... 73 Clark v. Moffett, 136 Kan. 711, 18 Pac. (2d) 555, 16, 54, 55, 57, 61, 62, 63, 73, 86, 88, 106 vi INDEX Page Commonwealth v. Stasio, 8 N. E. (2d) 823.......... 108 Corbett v. Terminal Railroad Assn., 336 Mo. 972, 82 ee Bb liadbusadkocens thbend ¢ohvess es 14 Crawford v. Arends, 351 Mo. 1100, 176 S. W. (2d) 1.. 40 Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356... . 11 Dean v. State, 120 Fla. 60,162 So. 155.............. 12 DeBearn v. Safe Deposit & Trust Co., 233 U. 8. 24, a ie ESL Us Ge oa Gekssdewvceeetesees 75 Deming v. Carlisle Packing Co., 226 U. 8. 102, 57 L. i Mr SoC se ut fovea dvdk vend needs 15 Department of Banking v. Hedges, 136 Nebr. 382, tf ON Ry eee ree Ty rr Py 12 Dobbins v. Gas Co., 182 Cal. 616, 189 Pac. 1073...... 12 Doyle v. Loring, 107 F. (24) 337. . Neti eies eee 42 pn OS rere 80 Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188. 25 Pe OY, re Fadler v. Gabbert, 333 Mo. 851, 63S. W. (2d) 121.... 23,29 Fears v. Riley, 148 Mo. 49, 49 S. W. 836............ 77 Frigorifico Wilson De Law Argentina v. Wierton Ne ek Oe I os cv vcetcrccodenecens 43 Fritzler v. Boatmen’ s Bank, 212 U. S. 364, 53 L. Ed. Ne ere ee ee ee ee ls ey 74 Georgia v. Pa. R. Co., 324 U.S. 439, 89 L. Ed. 1051... 27 Gordon v. Burris, 125 Mo. 39,28S.W.191.......... 18 Gorman v. Washington University, 316 U. 8S. 98, 62 en I oe i ig cds cae hws cee cs Guhlman v. Growthe, 346 Mo. 427, 142 S. W. (2d) 1.. 96 Hallinger v. Davis, 146 U. 8. 314, 36 L. Ed. 986, 13 TIS sh be oi idan. doe Kone 0 RO hate ores 21 Howard Fee Case, 345 Mo. 741, 137 S. W. (2d) 507, 54, 66, 73, 80 Huddleston v. Dwyer, 322 U.S. 232, 64 S. Ct. 1015. 35 Hunter Co. v. McHugh, 320 U.S. 222, 64 Sup. Ct. 19. 35 Huntington v. Attrill, 146 U.S. 657, 36 L. Ed. 1123... 13 Johnson v. Drew, 171 U.S. 93, 43 L. Ed. 88......... 21 Githcart v. Ins. Co., 88 F. (2d) 410................. 85 Knorp v. Thompson, 352 Mo. 44, 175 8. W. (2d) 889. . 54,76 Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, Be rs ee bre ce SPAN: thoes Shcietes> 96 ELEED THROUGH= POOR COPY _—— INDEX vii Page Lawrence v. State Tax Commission, 286 U. 8. 276, 76 L. Ed. 1102, 52 Sup. Ct. 556, 87 A. L. R. 374..... 9 L. @N. Ry. Co. v. Woodson, 134 U. 8. 614, 33 L. Ed. >, SPR iak ce ctrl beh CONE D cay gate ates 21 Life & Casualty Ins. Co. v. McCray, 291 U. 8. 566, EEE os naka bine s bbb d Bite wyved de eaithe «et 10 Lindsay v. Evans, 176 8. W. (2d) 390.............. 95 Lober v. Kansas City, 339 Mo. 1087, 74 S. W. (2d) i Crt Re SN, ow wed’ sins VO-00.¥e ie «igh 38 Losch v. Pickett, 36 Kans. 222..................... 87 Manning, In re, 45 N. W. 26................--5.-5. 108 Memphis Natural Gas Co, v. Beeler, 315 U. 8. 649, 62 I, OE nb. vn w cv Sr aebegns's Mec vergemet e's 4 Midland Realty Co. v. Kansas City Power & Light Co., 300 U. S. 109, 57 Sup. Ct. 345................ 37 Missouri ex rel. v. Public Service Com., 273 U. 8. 126, NRE LES ORIEN MPa PE Pa 51 Missouri ex rel. Taylor, 266 U. S. 200, 69 L. Ed. 247, 45 Sup. Ct. 47, 42 A. L. R. 1232.................. 24 Missouri Pac. Railroad Co. v. Norwood, 283 U. S. 249, I a ahs Cok Cals we Ok Dit’ e+ Ke « 9 Mills Estate, In re, 162 S. W. (2d) 807.............. 81 Minneapolis € St. Lowis R. Co. v. Bombolis, 241 U.S. 211, 60 L. Ed. 961, 36 Sup. Ct. 595 Ann. Cas. 1916 is «ees ota ed ec CE AT AA DOS * BRET te vie 24 Mitchell v. Greenough, 100 F. (2d) 184............. 99 Moffett v. Clark, 131 Kans. 582 ................ . 54, 57, 73 Moffett v. Commerce Trust Co., 193 S. W. (2d) 588, 33, 38, 41, 89 Moffett v. Moffett, 131 Kan. 582, 292 Pac. 947, 77 SN a ae . 58, 69, 86, 106 Moffett v. Moffett, 131 Kan. 546, 292 Pac. 942....... 16, 93 Moffett v. Robbins, 298 U. 8. 675, 80 L. Ed. 1397, 56 OS . 6 See ve i a eee 16 Moffett v. Robbins, 81 F. (2d) 431....... . 16, 54, 55, 59, 60 Moffett v. Robbins, 14 Fed. Supp. 602......... 54, 59, 67, 86 New Orleans Waterworks Co. v. Louisiana, 185 U. S. viii INDEK Niehaus v. Jos. Greenspon’s Son Pipe Corp., 237 Mo. r 6h Sl yh A Ol Norton v. Shelby, 118 U.8.426................... O’Sullivan v. Feliz, 233 U. 8. 318, 58 L. Ed. 980... ... Parker v. McLain, 937 U. S. 469, 59 L. Ed. 1051...... Pele v. Bollinger, 180 Mo. 252..................... Picking v. Pa. R. Co., 151 F. (2d) 240.............. Pitcairn v. American Refrigerator Transit Co., 101 RR rik er ee Pe ee Plymouth Motor Corp, In re, 46 F. (2d) 212........ Radio Station WOW v. Johnson, 326 U. S. 120, 65 Sup. Ct. 1475..... kien jax bandas racers ty enews Reppetto v. Walton, 313 Mo. 182, 281 S. W. 411. Rockwood v. Crown Laundry Co., 352 Mo. 561, ‘178 gs BBs Fe Se 24, Roe v. Kansas ex rel. Smith, 278 U. S. 191, 73 L. ee eae fee ee Fete a tdaacectatcasat al Sabin v. Home Owners Loan Corporation, 151 F. CT Eggi a ie SP Pine Pel ere oe Sabol v. St. Lowis Cooperage Co., 318. W. (2d) 1041. Scheufler v. Mfg. Lumb. Underwriters, 349 Mo. 855, SE re ee I ha ae chk onksasscdne teas ste. Scott v. Alton Bank & Trust Co., 1758. W.920. _... Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 8S. W. Bt SR eR Ra Be sasese Ff PP ee sti c's rel es Dede cies 100 Shapleigh v. Mier, 299 U. S. 468, 81 L. Ed. 356, ‘57 Sup. Ct. 261 . 71 Sidway v. Land é ‘Live Stock Co., 197 Mo. 359, 94 SP TES ce va dc dese e sce 8 Simpson v. Stoddard, 173 Mo. ees 41 Southwestern Bell Telephone Co. v. Oklahoma, 303 De ey es Gc. hs a ieee ES 5 State v. Bacon, Gi Atl. G63........................ 100 State v. Dalton, 134 Mo. App.517.................. 100 State v. Douglas, 50 Mo. 586...................... 107 State v. Duestrow, 137 Mo. 44, 38 S. W. 544, 39 S. W. NS Rae eh ate ae ard ous bene s cond ovean 45 Bais Gs Tee Gs Us coe li cw ccececccccvess 107 State ex rel. v. Horner, 187 S. W. (2d) 976.......... 87 ELEED THROUGH= POOR COPY Page State ex rel. v. Landwehr, 332 Mo. 622, 60 8S. W. AG sx eins tye nancies oe biein a ainin > 00: 77 State ex rel. Burns v. Woolfolk, 303 Mo. 589........ 81 Thomson v. Butler, 136 F. (2d) 644................ 97 United States v. Pink, 315 U. 8S. 203, 86 L. Ed. 796, GR, WE oc owewadndewnnvuris s 4uGe at . 80, 52, 72 Waters-Pierce Oil Co. v. Texas, 212 U. 8. 86, 53 L. Ed. : a a ae ot 1 Webb v. Bidwell, 15 Minn. 479 .................... 12 Weber v. Strobel, 225 S. W. 925................... 96 Weitzman v. Weitzman, 156 8. W. (2d) 908......... 84 Wells v. Davis, 303 Mo. 388....................... 23 Wilson Co. v. Inst. Co., 300 Mo. 1, 254 8. W. 266... .. 19 Wright v. Central National Bank, 37 F. (2d) 234... . 15 Yazoo, etc., R. Co. v. Mullins, 249 U. 8. 351, 63 L. ee had Seen ee eae CE heed ss) t inti necne st 50 Zombro v. Moffett,448. W. (2d) 149............... 64 Statutes Crrep Constitution of the United States: Fourtenth Amendment ...................... 19, 22 Fair Labor Standard Act of 1938, 29 U. 8. C. 201-219. 25, 26 Federal Rules of Civil Procedure, Rule 86.......... Missouri Cede of Civil Procedure, Sec.3........... 48 Missouri Constitution of 1875: Secs. 3 and 5 of 1884 Amendments............. 47, 48 pO tT eee 49 Missouri Constitution, Sec. 4 of 1890 Amendment. __. 47 Missouri Constitution of 1945, Sec. 3 of Article V.... Mo. Rev. St. 1939: CE ss, cna cio ces hued tro isieline. 6, 19, 79 Section 958 54 I Ss Tio oh b babs Soe tee ae 99 x INDEX Page U.S. Rev. St. Sec. 1010 (28 U.S.C. 878............. 14 U. 8. Rev. St.: Section 1979 (8 U. S. C. 43).............08. 23, 24, 98 Section 1080 (8 U.S. C. 47)............... . 23, 24, 98 Section 1981 (8 U.S. C. 48)..............4.. 23, 24, 98 cece tote wu sedMe Re es oe Bc estesadddel 99 ES eee cae ne care eerers 99 28 U.S. C. 344 (Judicial Code, Sec. 237)............ 50, 97 ED ova. > os URS ote ab ecie ohr ba bind os 14 Orner AuTuorities Crrep 11 Amer. Jur. Prud. ‘‘Constitutional Law’’ Sec. 83, Llc is hace bode cae s st scareds sien 10 ey IG ys Sos oil's ae¥ 0d as 05.56 50 00 ecane 108 Se Es ELEED THROUGH= POOR COPY SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1946 No. 318 LOUISE McGREW MOFFETT ayv LOUISE McGREW MOFFETT as Execuraemx or tue Estate or Tuomas S. Morrett, Decgasep, - Appellants, COMMERCE TRUST COMPANY, a Corporation, HELEN WEEDE, B. C. HOWARD, ann WILLIAM H. KOPP, Appellees APPELLEES’ SUGGESTIONS OPPOSING JURISDIO- TION, AND MOTION TO DISMISS APPEAL OR AFFIRM JUDGMENT Statement The Appellees, believing that the matters set forth below will demonstrate the lack of substance in the questions raised by this appeal, file this, their statement in opposition to Appellants’ statement as to jurisdiction. Appellees in- clude herein and at the end hereof their motion to dismiss the appeal, or, in the alternative, to affirm the judgment lg a — 2 of the Supreme Court of Missouri, on the ground that the questions raised on behalf of Appellants are so unsubstan- tial as not to sustain the jurisdiction of this Court and not to require further argument. Appellees assert that the unsubstantial character of the grounds stated by Appel- lants is so apparent on the face of the record as to defeat the jurisdiction of this Court and to warrant summary disposal of the appeal by the Court at this stage of the proceeding. The matters here relied upon by the Ap. pellees are more particularly stated in the following parts of this statement. Foreword to Discussion The Appellees have heretofore been and now are sepa- rately represented by their respective counsel. However, to avoid unnecessary repetition and conserve the time and labor of this Court, Appellees have joined in the suggestions and motion hereinafter set out. We regret the length of these suggestions but feel compelled to discuss the question involved at some length because of the long, involved and confusing Assignments of Error and Jurisdictional State- ment filed by Appellants. Appellants’ Assignments of Er- ror cover some six and one-half crowded pages of type- writing. Their Jurisdictional Statement covers more than thirty-three crowded typewritten pages, exclusive of exhibits. On Page 46 of the Jurisdictional Statement, there ap- pears the following: ‘*Appellants adopt and make Motion for rehearing and to Transfer to the Court en banc in the state supreme court, and Assignments of Error herein filed, a part hereof, as fully as if set forth as a part of this jurisdictional statement.’’ Examination of this motion discloses that it consists of twenty-four pages, and, further, that most of the contentions ELEED THROUGH POOR COPY 3 therein were relative to non-Federal questions. We respect- fully submit in passing that it is violative of at least the spirit of the Rules of this Court in proceedings of this char- acter for the Appellants to incorporate in a jurisdictional statement by reference a lengthy document of this character. We feel that the jurisdictional statement should not go be- yond the confines of the Assignments of Error, which are a part of the appeal papers to this Court. We believe Appellants’ Assignments and Jurisdictional Statement merit the condemnation given plaintiff in error’s assign- ments in the case of Central Vermont Railway Co. v. White, Administratriz, 238 U. 8. 507, where the Court said: «* * © The case was brought here on a record containing so many assignments, covering 18 printed pages, as to make it proper to repeat the ruling in Phillips v. Seymour, 91 U. 8. 648, that the ‘practice of filing a large number of assignments cannot be ap- proved. It perverts the purpose sought to be subserved by the rule requiring any assignments.’ ‘It points to nothing and thwarts the purpose of the rule’ (Chi- cago, Great Western Ry. Co, v. McDonough, 161 Fed. Rep. 659) which was intended to present to the court a clear and concise statement of material points on which the plaintiff in error intends to rely.’’ Appellants here might just as well point to the sky as to their assignments of error and jurisdictional statement. The one would be about as indefinite as the other. This Court in the Central Vermont Railway case, supra, said further (238 U. 8. 1. ¢. 509): ‘‘Some of the assignments in the present case relate to matters of pleading; others to the admissibility of evidence, to the sufficiency of exceptions, and to various rulings of the trial court which involved no construction of the Employers Liability Act and which, therefore, cannot be considered on writ of error from a state court. Seaboard Air Line v. Duvall, 225 U. 8. 477, 487.”’ > That case was an appeal from a Vermont judgment. What is there said is applicable to most of the matters complained of here, to-wit : they are matters of State practice, involve no Federal question, and a State court judgment thereon is final and conclusive. Preliminary to our discussion of the jurisdiction ques- tions involved, we desire to call attention to a few funda- mental rules. Appellants are here invoking the appellate jurisdiction of this Court to review the judgment of the Missouri Supreme Court. The burden is therefore upon appellants to demonstrate this Court has jurisdiction. In the case of Gorman v. Washington University, 316 U. 8. 98, 62 S. Ct. Rep. 962, this Court said: (1. ¢. 964) ‘Upon application to this Court for review of the judgment of a state court it is the petitioner’s burden to show affirmatively that we have jurisdiction. Mem- phis Natural Gas Co. v. Beeler, 315 U. S. 649, 62 S. Ct. 857, 86 L. Ed. —.”’ 4 The opinion in the case cited in the quotation above, Memphis Natural Gas Company v. Beeler, 315 U. 8. 649, 62 S. Ct. 57, states: (1. ¢. 859) ‘*The case comes here by appeal from a judgment of the Supreme Court of Tennessee, which sustained the tax and reversed a decree of the Tennessee chancery court enjoining its coliection. * * * The Judicial Code was intended to restrict our obligatory appellate jurisdiction to a narrow class of cases, and to fore- close an appeal as of right whenever the prescribed conditions have not been rigorously fulfilled.’’ To discharge the burden upon them and demonstrate this Court has jurisdiction herein, Appellants must prove that there was a substantial Federal question involved upon which the State Court decision necessarily rests. The re- quirements in this connection are well stated by this Court cr cen THROUGH=— POOR COPY in the case of Southwestern Bell Telephone Company v. State of Oklahoma, 303 U. 8. 206, 58 S. Ct. Rep. 528, as follows: (1. ¢. 530) ‘‘We have repeatedly held that it is essential to the jurisdiction of this Court in reviewing a decision of a court of a State that it must appear affirmatively from the record, not only that a federal question was pre- sented for decision to the highest court of the State having jurisdiction, but that its decision of the federal question was necessary to the determination of the cause; that the federal question was actually decided or that the judgment as rendered could not have been given without deciding it. DeSaussure v. Gaillard, 127 U. S. 216, 234, 8 S. Ct. 1053, 32 L. Ed. 125; John- son v. Risk, 137 U. S. 300, 306, 307, 11 S. Ct. 111, 34 L. Ed. 683; Wood Moving & Reaping Machine Co. v. Skinner, 139 U. S. 293, 295, 297, 11 S. Ct. 528, 35 L. Ed. 193; Whitney v. California, 274 U. 8S. 357, 360, 361, 47 S. Ct. 641, 642, 643, 71 L. Ed. 1095; Lynch v. New York, 293, U. S. 52, 54, 55 8. Ct. 16, 17, 79 L. Ed. 191.”’ In the case of Radio Station WOW v. Johnson, 326 U. S. 120, 65 S. Ct. Rep. 1475, this Court stated the rule as follows: (1. ¢. 1480) ‘‘Here the Nebraska Supreme Court held that the federal question had dropped out as a matter of plead- ing and also denied its merits. This brings the situa- tion clearly within the settled rule whereby this Court will not review a State court decision resting on an adequate and independent non-federal ground even though the State court may have also summoned to its support an erroneous view of federal law. ‘Where the judgment of the state court rests on two grounds, one involving a federal question and the other not * © * and the ground independent of a federal question is sufficient in itself to sustain it, this Court will not take jurisdiction.’ Lynch v. New York, 293 U.S. 52, 54, 55, 55 S. Ct. 16, 17, 79 L. Ed. 191.”’ | a We are confident Appellants have failed to meet the above tests and discharge their burden to prove jurisdiction in this Court by reason of a substantial Federal question actually passed upon and necessary to the decision of the State court. We shall now attempt to demonstrate that Appellants have failed to discharge this burden and be- cause thereof, this appeal should be dismissed. I The contention that this Court acquired jurisdiction by reason of the alleged point that Section 948 R. 8. Missouri, 1939, is violative of Section 10, Article I of the Constitution of the United States is so clearly without foundation as to present no substantial or colorable Federal question. The judgment rendered herein in conformity to said section was not upon the merits and is no bar to the commencement of ancther action. (Appellants assignment of errors numbers 14, 15 and 18) By reference to the opinion of the Supreme Court of Mis- souri in the instant case, 193 S. W. 2 588, it is readily ap- parent that the only Federal question which the Supreme Court of Missouri had occasion to pass upon, and did pass upon, in arriving at its decision that the judgment of the court below was right in sustaining the demurrers and dis- missing the petitions for misjoinder of parties plaintiff (a procedural question) was the contention that Section 948 R. S. Mo. 1939 was in effect a bill of pains and , enalties and a violation of the provisions of Article I, Section 10, of the Federal Constitution which prohibits a State from passing a bill of attainder. Section 948 R. 8S. Mo. 1939 is as follows: **Sec. 948. Proceedings if third pleading is insuffi- cient, ELEED THROUGH= POOR COPY — 7 “If a third petition, answer or reply be filed and ad- judged insufficient as above, or the whole or some part thereof be stricken out, the party filing such pleading shall pay treble costs; and no further petition, answer or reply shall be filed, but judgment shall be rendered. R. 8. 1929, #796.”’ It is the third of a series of correlated sections which were first enacted by the State of Missouri in 1825, the first of which, section 946 id., provides that when a petition, answer or reply shall be adjudged insufficient in whole or in part upon demurrer or the whole or some part thereof stricken out on motion, the party may file a further like pleading within such time as the court shall direct; and in default thereof, the court shall proceed with the cause as if no such original pleading had been filed. The second section, 947 id., provides that if such a second pleading be filed and adjudged insufficient or stricken in whole or in part, the party filing the same shall pay double costs, and file a like pleading instanter ; or in default thereof, the court shall proceed as if no second pleading had been filed. It will be noted that Section 948 id., simply provides for treble costs, forbids the filing of any further like plead- ing and commands that judgment shall be rendered. Section 948 id., thus attacked not only has been upon the statute books of the State of Missouri for one hundred twenty years, but intensive research has failed to disclose any previous attack upon its validity under either the Fed- eral or State constitutions. On the contrary, it has been construed, applied and enforced universally by the trial courts of Missouri, with the approval of the Supreme Court and other appellate courts of that State when exercised in accordance with their interpretation of its meaning and effect. The provisions of Section 948 id., are wise, salutary and remedial. The reasons which in the opinion of the appellate 9 courts of Missouri, influenced the Legislature to enact that section have been cogently set forth in the Comes cited below, among others. In Beardslee v. Morgner, 73 Mo. 22, the heskeai Court of Missouri, in a decision rendered in the year 1880, said with reference to the section in question: ‘*The legislature, no doubt, thought a pleader who could not draw a good petition in three trials ought to go out of court, and not detain his adversary any longer by his blundering dilatoriness. Whatever they may have thought, this is what they commanded, and that command we are not at liberty to ignore.’’ In Sidway v. Land @ Live Stock Co., 197 Mo. 359, |. «. 371-373, 94 S. W. 855, a decision rendered in the year 1906, the court elaborately construes and applies the mean- ing and intent of this section thus: ‘‘The lawmakers doubtless thought that some time should be fixed in which efforts to litigate should cease, and they therefore provided that, when a third petition was filed and adjudged insufficient, it was the duty of the court to end such efforts at litigation, and render judgment providing that the party filing such petition should pay treble costs, and prohibiting the filing of any further petitions.’’ (But such judgment does not bar another action. This is briefed infra.) Bennett v. Southern Bank of Mexico, 61 Mo. App. 297 was decided by the Kansas City Court of Appeals, in an able opinion which has been cited with approval by the Supreme Court of Missouri. The Court of Appeals in its opinion on rehearing, said of the section in question: ‘*The offending party is punished for the negligent or unskillful manner of drafting his pleading.’’ The foregoing, together with other similar opinions of the Missouri appellate courts are well summarized in the ELEED THROUGH= POOR COPY ~, opinion in the instant case (193 S. W. 2d 588, 1. ¢. 592) wherein the court says of Section 948 id.: “This statute, until the effective date of our new Code, was in force for one hundred twenty years. It has frequently been construed by this and other courts and, so far as we know, its constitutionality has never been assailed before. * * ° It applies only to civil procedure, inflicts no penalty without a hearing, au- thorizes neither fine nor imprisonment, but only a money judgment for unreasonably consuming the time of courts and litigants and causing needless expense by filing defective petitions. Its constitutionality is presumed and appellants have offered nothing to rebut the presumption.”’ The presumption of constitutionality which attaches to every State statute unquestionably attaches in this case. Alaska Packers Association v. Industrial Acci. Com., 294 U.S. 532 1. e. 543; 79 L. Ed. 1044, 1. c. 1049. And the burden rests upon the appellants to overcome that presumption and to demonstrate plainly any asserted invalidity. Mis- souri Pac. Railroad Co. v. Norwood, 283 U. 8. 249, 1. «. 254, 255, 75 L. Ed. 1016, wherein this Court said: “The state laws are presumed valid. * * ° The burden is on ae a like result is produced by a change in the construction of a statute relating to procedure by a court of last resort.’ This is the extent to which this court has gone and no further.”’ This judgment had been entered and an appeal taken by appellants on the same day of the judgment, (to preserve their rights on appeal under the old Code which gave them greater latitude as to length of briefs and other ad- vantages), all prior to the effective date of the new Code on January 1, 1945. There was thereafter no proceedings had in the Circuit Court and under the established rule in a Missouri the changes wrought by the new Code did not invalidate the proceedings theretofore taken in the Circuit Court which were valid under the old Code then in force. In the case of Anson v. Tietze, 190 S. W. (2d) 193 (not yet officially reported), the Missouri Supreme Court said: 1. e. 198) ‘It is well settled that when a new statute as to procedure goes into effect before the final decision of a case it governs and regulates matters of procedure therein subsequent to its effective date. Clark v. Kan- sas City, St. L. & C. R. Co., v. Haid (Banc), 330 Mo. 1093, 1100 (11), 52 S. W. (2d) 183, 186 (3-5).”’ That is the last expression of the Missouri Supreme Court we have found and confirms its adherence to the rule that a change in procedure affects only ‘‘matters of procedure therein subsequent to its effective date.’’ In the case of Crawford v. Arends, 351 Mo. 1100, 176 S. W. (2d) 1, the Court, in banc, held an adopted child, claiming as a lineal descendant under a will, not entitled te recover. In a motion to modify or clarify the opinion, it was called to the attention of the Court that five days before the opinion of the Court was delivered a new statute had been enacted which, it was claimed would allow the claimant to recover. The Court wrote a per curiam opin- ion overruling said Motion to Modify or Clarify Opinion in the course of which the Court said: (1. ¢. 7) ‘*It will be noticed the section says the adopted per- son ‘shall hereafter be deemed and held,’ etc. The word ‘hereafter’ as thus used refers to the date when the Act takes effect. 19 Words and Phrases Perm. Ed., page 389. It is obvious that the construction of this statute and the respondent’s rights under it were not and could not have been a matter for adjudication in the trial court; and since this record is here by appeal we are confined to the issues in that court. ELEED THROUGH= POOR COPY —_—_ 41 We cannot treat the cause as an original proceeding and determine the meaning and effect of the statute.’’ In the case of Simpson v. Stoddard, 173 Mo. 421, cited by Appellants on this point is clearly distinguishable for the statute there involved was a curative statute expressly enacted for the purpose of operating retrospectively. Ex- actly the opposite is true here as the statute itself limits its application to matters arising prospectively. Furthermore, Section 3 of the Missouri Code for Civil Procedure quoted supra as to proceedings subsequent to its effective date authorizes the trial court, in its discre- tion, to follow the old procedure in any cas¢ pending prior to the effective date of the new Code whenever, in the opinion of such court, it ‘‘would not be feasible or would work injustice.’’ Therefore, even if the case were reversed and remanded, the trial court still would be authorized to apply the old procedure in the exercise of this discretion. Furthermore, Appellants have not shown they were prejudiced by the application of the old Code with respect to the joinder of parties and causes of action. In fact the contrary appears from the opinion of the Supreme Court, Moffett v. Commerce Trust Company, 193 S. W. (2d) 588, wherein the Court says: (I. ¢. 591) ‘Judge Ridge sustained the demurrers on the sole ground of misjoinder of parties, but the demurrers also attacked the petition for misjoinder of alleged causes of action and for failure to state a cause of action. We think the reason assigned by the trial court is sufficient, but his ruling can be sustained on the other grounds mentioned. Hartvedt v. Harpst, Mo. Sup. 173 8S. W. 2d 66, loc. cit. 68; Bushman v. Barlow, 321 Mo. 1052, 15 8. W. 2d 329, 330.’’ Said Section 3 of the Missouri Code for Civil Procedure was modeled on Rule 86 of the Federal Rules for Civil 42 Procedure. In the aspect now being considered we are confident the two call for the same construction. In the case of Doyle v. Loring, 107 F. (2d) 337, the District Court dismissed the bill for lack of jurisdiction over the subject matter and for lack of proper venue. In affirming that ruling the United States Circuit Court of Appeals for the 6th Circuit said: (1. ¢. 340) ‘*Appellants insist that the application of Rules 17(b), 4(d) (1), 4(d) (7), 12 (hb), BU SOA following Section 723c, requires a result different from that reached by the District Court. We are not required to enter into a detailed discussion of the rules. The Rules of Civil Procedure became effective while the suit was pending and whether they should have been applied was in the discretion of the Court (Rule 86).’’ Application for certiorari to this Court in that case was denied, 309 U. S. 686, 60 8. Ct. Rep. 808. Application of the previous Rules of Procedure, under similar conditions, have been approved by the Federal Courts in construing the Federal Rules of Civil Procedure which are the parent of Section 3 of the new Missouri Code. In the case of City of El Paso v. West, 104 F. (2d) 9%, the United States Circuit Court of Appeals for the Fifth Circuit in a memorandum opinion on Motion for Rehearing said: (1. ¢. 97) ‘‘Appeal is also made to the new rules of Civil Procedure which abolished the old forms of action and provide that there shall be but one. ‘*This case was filed and tried in the District Court before the Rules of Civil Procedure existed. The pleadings must be interpreted according to the laws then obtaining.’’ In that case an application for certiorari to this Court was denied, 308 U. 8. 587, 50 8. Ct. 111. ELEED THROUGH= POOR COPY -_ 43 In the case of Frigorifico Wilson De La Argentina v. Weirton Steel Company, 31 Fed. Supp. 218, the United States District Court for the Northern District of West Virginia sustained a demurrer to the 5th declaration, say- ing: (1. ¢. 219) ‘‘This declaration has been tested by the common law rules of pleading, as applied in the Courts of West Vir- ginia under the General Conformity Act, 28 U.S.C. A., Section 724, because said declaration was filed prior to the adoption of the Federal Rules of Civil Procedure, 28 U.S. C. A., following Section 723c. See Rule 86. Of course all future pleadings herein, filed by either party, must conform to the new rules.’’ Upon appeal, that decision was affirmed by the United States Cirenit Court of Appeals for the Fourth Circuit, but without discussing the particular point, 62 F. (2d) 677. Under both the Missouri and Federal authorities, the Missouri Supreme Court committed no error in deciding this case on appeal on the basis of the governing authority being the old procedure under which the case was tried in the court below. The point is not before this Court, but, if it were, we submit there is no merit in Appellants’ conten- tions and no substantial Federal question is presented which could give this Court jurisdiction. 44 Vv There was no error by Division 1 of the Supreme Court of Missouri in denying the application of appellants for trans. fer of the instant cause to the Supreme Court of Missouri en banc; appellants could not claim such transfer as a matter of right; and there was no violation of the equal protection clause of Sect. 1 of Amendment XIV to the United States Constitution. The Supreme Court of Missouri en banc does not have superintending control over a division of that court (Ap- pellants’ assignment of error number 37). Appellants, in their Jurisdictional Statement, say that ‘‘Said division I of the Missouri Supreme Court is not the highest court in Mis. souri. Appellants sought by said motion to transfer the case to the Court En Banc, which is the highest State Court.’’ (Citing cases.) In one sense, there is a legal procedure under which, in certain instances, a cause may be transferred to the Mis. souri Supreme Court en banc from a division thereof, but under the law and the facts in this case and for the purposes of this appeal, Division 1 of the Missouri Supreme Court was the highest court of the State in which a decision of this ease could be had by the appellants. Under the law the decision of Division 1 of that court against transfer of a cause to the court en banc was as conclusive upon the appel- lants as it was upon the court, as distinguished from the two divisions in which the Judges thereof sit. The court en banc cannot, on application to it, by the losing party, re- view a decision of a division that no Federal question is involved in the case, and refusing to transfer the case to the court. Scheufler v. Mfg. Lumb. Underwriters, 349 Mo. 855, 163 S. W. 2, 749, 750; certiorari denied 317 U. 8S. 684, 87 ELEED THROUGH= POOR COPY — 45 L. Ed. 548. State v. Duestrow, 137 Mo. 44, 91, 38 5S. W. 544, 39 S. W. 266, 1. c. 267, 268. In State v. Duestrow, supra, the Supreme Court of Mis- souri, en banc, aptly stated the issue of law (39 8. W. lL. «. 267) thus: “The only question directly presented for our con- sideration on this motion is whether the court, sitting in banc, has power, under the amendment to the constitu- tion adopted in 1890, to review the action of a division of the court, and determine whether a federal question is involved, and to order a transfer of a case to court in banc after such division has unanimously decided that there is no federal question in the case.’’ The Court, after referring to the constitutional provisions involved, in Section 4 of the 1890 Amendment to the Mis- souri State Constitution reading as follows: ‘When the judges of a division are equally divided in opinion in a cause, or where a judge of a division dis- sents from the opinion therein, or where a federal ques- tion is involved, the cause, on the application of the los- ing party, shall be transferred to the court for its de- cision; or, where a division in which a cause is pending shall so order, the cause shall be transferred to the court for its decision.’’, proceeds with its opinion thus: ‘‘Does this section give to the court in banc the power claimed by defendant under his motion? We are of the opinion that it does not. It cannot be said that this section gives to the supreme court superintending con. trol over a division.”’ * *° ° ‘The existence or nonexistence of a federal question in a cause may sometimes be in doubt, and judges may differ in their opinion on the question; yet a division of the court is fully as competent to determine that ques- tion as the more important one involving the merits of the case, in which the power is not, and, indeed, cannot 46 be, disputed. Its unanimous judgment on incidental questions is also conclusive. In this case division 2 heard the appeal on its merits. The application to transfer was properly made to it. The right to a trans. fer depended upon whether a federal question was in- volved. That was a question for that division to settle. It did so, by finding that no federal question was in- volved, or, as the application was denied, we must pre- sume it so found. The court sitting in banc is given no power to review that decision. Defendant’s motion is overruled.’’ In Scheufler v. Mfg. Lumb. Underwriters, supra, the Su- preme Court of Missouri en banc, in holding that the con- stitutional amendment of 1890 does not give the Supreme Court en banc superintending control of a division of the court and that the court en banc cannot compel the transfer of a cause to the court en banc from a division thereof, says: ‘*Ever since the decision of State v. Duestrow, 137 Mo. 44, 91, 38 SW 554, 39 SW 266 in 1896, it has been the settled law of this state that such motions must be filed in whichever of the two Divisions of this court has decided the case; and that the court en banc cannot com- pel a transfer of the cause. * * *° ‘*The Duestrow case, (137 Mo. loc. cit. 95, 38 S.W. 554, 39 SW. loc. cit. 268) squarely holds that Sec. 4 of the Amendment does not give the court en banc super- intending control over a Division. ‘*The Amendment of 1890 was adopted to expedite the work of the court by creating two divisions of con- current jurisdiction, each with the separate power to adjudicate causes coming to the court; and with the further power to determine when causes before it, shall be transferred to the court en banc under Sec. 4 of the Amendment.’’ (Emphasis added.) As noted above, this Court denied certiorari in the last cited case. — 47 Since the above decisions the State of Missouri in 1945 adopted a new Constitution but we submit the comparisons here made will show that the slight change in phraseology in the new Constitution simply make for conciseness and clarity and that the decisions cited herein are fully as ap- plicable to the new State Constitution as to the old. The counter part of Sec. 4 of the Amendment of 1890 quoted above is Section 9 of Article V of the Missouri Con- stitution of 1945. It reads: “Sec. 9. Transfer of Causes to Supreme Court in Banc.—A cause in the supreme court shall be trans- ferred to the court in bane when the members of a di- vision are equally divided in opinion, or when the di- vision shall so order, or on application of the losing party when a member of the division dissents from the opinion therein, or a federal question is involved, or pursuant to supreme court rule.”’ A learned annotator of the new Constitution comments that except for the concluding words ‘‘or pursuant to su- preme court rule’’, the only substantial difference between Sec. 4 of the Amendment of 1890 and the last quoted new Section arises from the change in position within the section of the phrase ‘‘on application of the losing party.’’ The constitutional provisions with respect to the jurisdic- tion of the State court prior to the adoption of the 1945 Con- stitution were in a part of Section 12, Article VI, Missouri Constitution, 1875, which primarily created the St. Louis Circuit Court of Appeals, but also stated the jurisdiction of the State Supreme Court, and Sections 3 and 5 of the 1884 Amendments to the 1875 Constitution. Such pertinent pro- visions read : ‘See. 12. St. Louis Court of Appeals—jurisdiction— appeals to Supreme Court—* * * Appeals shall lie from the decisions of the St. Louis Court of Appeals to the Supreme Court, and writs of error may issue from 48 the Supreme Court to said court in the following cases only; In all cases where the amount in dispute, ex- clusive of costs, exceeds the sum of two thousand five hundred dollars; in cases involving the construction of the Constitution of the United States or of this State; in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question; in cases involving the construction of the revenue laws of this State, or the title to any office under this State; in cases involving title to real estate; in cases where a county or other political subdivision of the State or any State officer is a party, and in all cases of felony. ‘Sec. 3, Amdt. 1884, provided, among other things, that ‘the General Assembly shall have power by law * * © to increase or diminish the pecuniary limit of the jurisdiction of the court of appeals. * ° ° ‘*Sec. 5 Amdt. of 1884 reads as follows: Sec. 5. Supreme Court, exclusive appellate juris- diction of—In all causes or proceedings reviewable by the Supreme Court, writs of error shall run from the Supreme Court directly to the cireuit courts and to courts having the jurisdiction pertaining to circuit courts, and in all such causes or proceedings, appeals shall lie from such trial courts directly to the Supreme Court, and the Supreme Court shall have exclusive jurisdiction of such writs of error and appeals, and shall in all such cases exclusively exercise superintend- ing control over such trial courts.’’ The corresponding provisions of the 1945 Constitution are found in Section 3 of Article V thereof: ‘*Sece. 3. Jurisdiction of the Supreme Court.—The supreme court shall have exclusive appellate juris- diction in all cases involving the construction of the Constitution of the United States or of this state, the validity of a treaty or statute of the United States, or any authority exercised under the laws of the United E LEED THROUGH= POOR COPY 49 States, the construction of the revenue laws of this state, the title to any office under this state, the title to real estate, in all civil cases where the state or any county or other political subdivision of the state or any state officer as such is a party, in all cases of felony, in other classes of cases provided by law, and until otherwise provided by law, in all cases where the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars.’’ We think there is significance in the identity of the words drawn in question’’, with respect to the validity of a eaty or statute of the United States in Section 12, Article ‘I, Constitution 1875, and in Title 28, U. S. C., Sec. 344 Sec, 237, Judicial Code, amended). It is also to be noted that the Supreme Court of Missouri olds that the word ‘‘involved’’ as used in the 1875 Con- titution in fixing the appeilate jurisdiction of the Missouri jupreme Court ‘‘implied that a constitutional question vag raised in and submitted to the trial court, and that uch court had the opportunity to pass upon it.’’ Aufder- ide v. Ice & Fuel Co., 319 Mo. 337, 48. W. 2d 776, |. ¢. 799 ; Bennett v. Railway Co., 105 Mo. 642, 644, 16 8. W. 947, 948. This was in passing upon the procedural steps necessary 10 place jurisdiction in the Supreme Court of the State, and the only application here made is that when that juris- liction has been acquired, and appellants claim that refusal to transfer the cause from the division to the court en bane violated a Federal right, the question being timely raised, the division of the court must determine whether an alleged Federal question is in fact involved in the record by proper procedure and then whether the alleged question is Federal in any sense. In either case, under the cited decisions of the Missouri Supreme Court the question of transfer from division to the court en banc is strictly one of procedure of State law. 4g — In State v. Duestrow, supra, cited and followed ever since 1896, where the application to transfer to the court en banc for an alleged Federal question was denied the Supreme Court en banc held that the unanimous decision of the three judges of Division 2 was final. Division 2 of the Supreme Court was ‘‘the highest court of a State in which a decision in the suit could be had.” 28 U. S. C. Sec. 344 (See. 237, Jud. Code, Amended). In the instant case, the like final decision under the authorities cited was not only made by the unanimous concurrence of the four judges of Division 1 of the court, but it likewise was the judgment of a majority of the seven members of the entire court. Appellants could have no right under the Federal Constitution to control the law of Missouri as to what should be the highest | court of the State in which a decision of the suit could be had. There could be no denial of equal protection of the law to appellants, because the supreme law of the State of Missouri vests in a division of its Supreme Court the judicial discretion to determine which cases decided in the division of the court involved a Federal question and which cases actually involved no such question. It might as well be argued that there was a denial of equal protec- tion by the vesting of power in an appellate court to affirm or reverse cases on appeal. In A. T. d 8. F. R. Co. v. Railroad Com., 283 U. 8. 380, 75 L. Ed. 1128, this Court, through Chief Justice Hughes, said: 50 ‘“*The decision of the state court is conclusive so far as the constitution and laws of the state are con- cerned.’’ In Yazoo etc. R. Co. v. Mullins, 249 U. 8. 351, 63 L. Ed. 754, this Court, through Mr. Justice Brandeis, said: ‘*Whether the case comes from a state court or a Federal court, this court will, for the purpose of de- croecen THROLIGH=] POOR COPY _ 51 termining whether the error found may have been prejudicial, examine the whole record; state questions being left to the decision of the state court in cases coming here from those courts.’’ In Waters-Pierce Oil Co. v. Texas, 212 U. 8. 86, 53 L. Ed. 417, this Court held: ‘‘The jurisdiction of this court to review the pro- ceedings of the state courts, as we have had frequent oceasion to declare, is not that of a general reviewing court in error but is limited to the specific instances of denials of Federal rights, whether those pertain- ing to the constitutionality of Federal or state statutes, or to certain rights, immunities, and privileges of Federal origin, specially set up in the state court, and denied by the rulings and judgment of that court.’’ In Missouri ex rel. v. Public Service Com., 273 U. S. 126, 71 L. Ed. 575, on error to the Supreme Court of Missouri to review a judgment reversing the Circuit Court of Cole County, after the entry of the judgment below a statute of Missouri was enacted fixing a greater clearance for the location of a railroad track beneath the street than was involved in the litigation in the State court. This Court, after stating that: ‘‘Ordinarily this court on writ of error to a state court considers only federal questions and does not review questions of state law.’’ further held that though its appellate powers were not thus restricted when questions of State law arising after the decision below are presented in this Court, yet: “‘The meaning and effect of the state statute now in question are primarily for the determination of the state court. While this court may decide these ques- tions, it is not obliged to do so, and in view of its nature, we deem it appropriate to refer the determina- 52 tion to the state court. Dorchy v. Kansas, supra, 290, 291 (68 L. Ed. 689, 690, 44 Sup. Ct. Rep. 323). In order that the state court may be free to consider the question and make proper disposition of it, the judg. ment below should be set aside, * *° In U. S. v. Pink, 315 U. 8. 203, 86 L. Ed. 796, 62 S. Ct. Rep. 552, this Court, through Mr. Justice Douglas, held that: ‘“e * * we are not free to inquire as petitioner sug- gests, into the propriety under New York practice of grounding the motion for summary judgment on the record in the Moscow Case. That is distinctly a ques- tion of State law on which New York has the last word.’’ (Emphasis added.) VI The records show that “most if not all” of the questions referred to by the Missouri Supreme Court on page 592 of its opinion in 193 8. W. (2d) 588, and also many other questions raised by appellants on this appeal, have been decided adversely to appellants by courts of competent jurisdiction in suits brought by appellants or in which they actively participated, and that appellants have not only had their day in court but their months and years. In several places in appellants’ Jurisdictional Statement, they seemingly criticize the opinion of the Supreme Court in 193 S. W. (2d) 588, on account of the following recital appearing therein: ‘‘They (the appellants) have not only had their day in court, but their months and years.’’ This statement follows the following recital therein (p. 592): ‘* Appellants make many other assignments of error; assailing the constitutionally of Missouri statutes 53 relating to partnership estates, and the probate laws of both Missouri and Kansas; ask us to declare void certain decisions of the Supreme Court of Kansas; invoke the treaty between this country and France in 1803 and the ‘due process’ and other provisions of the State and Federal Constitutions. Most if not all these questions have been decided adversely to appel- lants by courts of competent jurisdiction in suits brought by appellants or in which they actively par- ticipated as defendants. Moffett v. Moffett, 131 Kan. 582, 292 Pac. 947, 77 A. L. R. 294; Clark v. Andrews, 136 Kan. 23, 12 P. 2d 294; Clark v. Moffett, 136 Kan. 711, 18 P. 2d 555; Id. 290 U. S. 602, 54 S. Ct. 227, 78 L. Ed. 528; Moffett v. Robbins, D. C., 14 F. Supp. 602; Moffett v. Robbins, 10 Cir., 81 F. 2d. 431, Id. 298 U. S. 675, 56 S. Ct. 940, 80 L. Ed. 1397. Appellants have not been denied due process. They have not only had their day in court, but their months and years.’’ In the immediately following, and concluding paragraph, in referring to the above mentioned assignments of error, the Supreme Court said (p. 592) : ‘None of these assignments is germane to the question of whether the fifth amended petition contains a misjoinder of parties plaintiffs or fails to state a joint cause of action. We hold that the judgment is correct in form and in accordance with law and it is therefore affirmed.’’ It is thus evident that the Missouri Supreme Court deemed these assignments as having no significance in the light of the actual issues involved before it, and that the only constitutional question attempted to be passed upon, or which was passed upon by the court, was the contention that Section 948 violated the provisions of Section 10 of Article I of the Constitution of the United States relating to bills of attainder, As will elsewhere appear herein, the a 54 Missouri Supreme Court properly held that this contention was unsubstantial and frivolous. The opinions in Moffett v. Clark, 131 Kan. 582 (rendered November 8, 1930), Clark v. Moffett, 136 Kan. 711 (rendered January 28, 1933), and Clark v. Andrews, 136 Kan. 923, are all expressly referred to in the Fifth Amended Petition, and by reason of the pleading thereof, under the provisions of Section 958, R. S. Mo. 1939, reading as follows: **See. 958.—In every action or proceeding wherein the law of another state of the United States of America is pleaded, the courts of this state shall take judicial notice of the public statutes and judicial deci- sions of said state. R. S. 1929, Sec. 806.’’ the Missouri Supreme Court took judicial notice of these opinions, as well as of the laws, statutes and decisions of the State of Kansas. The record (*507-514) (°521-535) in the Howard fee case (345 Mo. 741, 137 S. W. 2d 507) shows that the opinions in Moffett v. Robbins, 14 Fed. Supp. 602, and Moffett v. Robbins, 81 F. (2d) 431, were offered in evidence therein, and under the following pro- nouncements in the case of Knorp v. Thompson, 352 Mo. 44, |. ce. 52, 175 S. W. (2d) 889, 1. ¢. 894: ‘‘Of course, a court can judicially notice its own records, and courts, when justice requires, should and do, in deciding a case, consider the records of other cases, as‘* * * where the interests of the public in ascertaining the truth are of paramount importance, as also in cases where the court is seeking to determine what is a reasonable exercise of its discretion, or whether the present proceeding is merely a moot one. And ‘there may be cases so closely interwoven, or so clearly interdependent as to invoke’ a rule of judicial notice in one suit of the proceedings in another suit.’ ’’ the Supreme Court of Missouri was entitled to take judicial notice of these two opinions, _ —— 55 The records of this Court will show that on or about June 93, 1933, Grace Torrance Clark as the Kansas Administra- trix of the Thomas S. Moffett Estate, and Louise McGrew Moffett as sole beneficiary of Thomas S. Moffett, filed in this Court, petition for writ of certiorari to review the case of Clark v. Moffett, 136 Kan. 711; that said petition was docketed therein as cause No. 181, and that this Court on October 9, 1933, denied certiorari therein (290 U. 8. 642, 78 L. Ed. 558), and on December 11, 1933, this Court denied petitioners leave to file petition for rehearing (290 U. 8. 602, 78 L. Ed. 528). The records of this Court will show that on or about April 11, 1936, Louise McGrew Moffett, as Executrix of the Estate of Thomas S. Moffett, deceased, and Louise McGrew Moffett, individually, filed in this Court, petition for writ of certiorari to review the case of Moffett v. Robbins, 81 F. (2d) 431; that said petition was docketed therein as cause No. 918, and that this petition was denied on May 18, 1936 (298 U. S. 675, 80 L. Ed. 1379). We have compiled and are placing in the Appendix hereto, pages 152-157 inclusive, the respective Specifications of Error set forth in these petitions, respectively. The Specifications of Error will clearly disclose that most, if not all of the questions attempted to be raised in the instant case were previously raised in the Supreme Court of Kansas, and in the Tenth Cireuit Court of Appeals, and were brought to the express attention of the United States Supreme Court in Petitions for certiorari. Refer- ence will be further made to these Specifications in other parts of this Statement The records of this Court in said cause No. 181 will also show the following at the respective pages of the record in said cause set opposite thereto: 1. Findings of fact and conclusions of law in the Harper County District Court, pages 531 (484) to 572 (525), which findings included Commerce Trust Company’s Exhibit No. 8, which is referred to in Finding No. 27, page 545 (498), as provided in the following recital in Finding No. 27: ‘*A true copy of said report is attached hereto as a part of the findings of the Court.’’ Said Exhibit No. 8 attached thereto appears in full on pages 572 (525) to 594 (548). 2. Plaintiffs’ motion to change, modify, strike out, and make additional findings of fact and conclusions of law, pages 595 (549) to 616 (570). 3. Journal entry of the Harper County District Court, pages 624 (578) to 629 (583). Journal entry of judgment of the Harper County District Court, pages 629 (583) to 660 (614). 4. Finding of fact No. 24 appears beginning at 543 (496). 5. Plaintiffs’ requested finding No. 13 appears pages 601-603 (555-557). 6. Stipulation concerning accounting, pages 160-161 (126- 127). In giving the above citations to the record, the first figi.res mentioned are the numbering given to the record by the Clerk of the Supreme Court of the United States, and the figures second appearing are the pages of the record in the transcript filed in the Supreme Court of Kansas, —_— 57 Under its decisions hereinafter referred to, the United States Supreme Court will take judicial notice of its records in connection with these certiorari proceedings. We particularly refer to the court’s findings of fact and conclusions of law, and the findings of fact and conclusions of law requested by the then plaintiffs, now appellants, in the Harper County, Kansas, District Court proceedings, and the judgment entry of that court, appearing respec- tively on the above pages in the Abstract of the Record filed in this Court in the aforesaid case No. 181. In other parts of this Statement we will comment concerning some of the recitals therein. For the convenience of the Court, we are setting forth in an Appendix attached hereto, on pages 110-119, inclusive thereof, the opinion of the Supreme Court in the case of Moffett v. Moffett, 131 Kan. 582, and on pages 119-133 thereof, the opinion of the same Court in the case of Clark v. Moffett, 136 Kan. 711, and on pages 134-146 thereof, inclusive, the opinon in the case of Moffett v. Robbins, 81 F. (2d) 431. Under its decisions hereinafter referred to, the United States Supreme Court will take judicial notice of its records in connection with these certiorari pro- ceedings. The Supreme Court of Missouri would likewise have been entitled to take judicial notice of the case of Moffett v. Moffett, 131 Kan. 546, 292 Pac. 942, mentioned and set forth above in Clark v. Moffett, 136 Kan. 711, on account of the following recital therein (1. c. 713) : “The will of John Moffett had been construed as it affected some of the beneficiaries, both by this court (Moffett v. Moffett, 131 Kan. 546, 292 Pac. 942) and by the Supreme Court of Missouri (Zombro v. Moffett (Mo.), 44 S. W. 2d 149).”’ ooo 58 The Supreme Court of the United States would likewise be entitled to take judicial notice of the case of Moffett vy, Moffett, 131 Kan. 546, because its records show that on or about February 2, 1931, Louise McGrew Moffett and Grace Torrance Clark, Administratrix, filed in this Court petition for writ of certiorari to review the decision of the Supreme Court of Kansas in the last named case; that said cause was docketed therein as cause No. 700, and that therein the petitioners asserted that the judgment denied Thomas §, Moffett the equal protection of the laws of the State of Kansas, in violation of Section 1 of the Fourteenth Amend. ment to the Constitution of the United States, and that by such decision, T. S. Moffett was deprived of the full enjoy. ment and possession of property ‘‘in violation of the com- mand of Section 1 of the Fourteenth Amendment to the Constitution of the United States.’’ The petition in this case contains the following recital: “*T. S. Moffett, one of the parties against whom the suit was instituted in the District Court of Comanche County, Kansas, and who was the appellant in the Supreme Court of the State of Kansas in the case sought to be reviewed herein, died on December 22, 1930, af‘er judgment and after his motion for a rehear- ing was filed and denied. ‘‘Thereafter, said cause was duly revived in the names of your petitioners in the Supreme Court of the State of Kansas, to-wit Louise McGrew Moffett, widow and sole beneficiary under the will of T. S. Moffett, and Grace Torrance Clark, administratrix with the will annexed in Kansas of the estate of T. S. Moffett, by substituting them as appellants, in lieu of the said T. S. Moffett, during the judgment term.”’ The records of this Court show that this Court, on March 9, 1931, denied certiorari (283 U. S. 825, 827, 75 L. Ed. 1440). Elsewhere in this Statement further reference will be made to the issues in the District Court and in the Kansas ——— CUCU ee et we — Supreme Court and in the United States Supreme Court in said case, and reference will also be made to the application thereof to certain allegations in the Fifth Amended Petition. In another section of this Statement, reference will be made to the questions raised by appellants in these three certiorari proceedings, and therefrom it will, we think, ex- ly appear that before this Court appellants raised many of the identical questions now raised by them in their Jurisdictional Statement, and it will, we think, appear therefrom that ‘‘most if not all’’ of the questions now raised were raised by them, and decided adversely to them, and it is to be presumed that appellants raised in the cer- tiorari proceedings, all questions which they deemed of any significance. The limitation upon our time will prevent a thorough review of what appears in the above mentioned opinions of the Supreme Court of Kansas and in the above mentioned cases of Moffett v. Robbins, 14 Fed. Supp. 602, and 81 F. (2d) 431. However, in view of appellants’ present con- tention, we invite consideration of all these cases, and par- ticularly the case of Moffett v. Robbins, 81 F. (2d) 431, because therein Judge Bratton reviewed a petition of the same appellants, prepared by the same lawyers, raising many of the questions which are now attempted to be raised by appellants’ attorneys. This case involved a proceeding instituted by Louise MeGrew Moffett individually and as Executrix of the Estate of Thomas 8. Moffett, deceased, against R. O. Robbins, Ancillary Administrator in Kansas With the Will Annexed of the Estate of J ohn Moffett, De- ceased (charging conspiracy between Helen Moffett, said R. O. Robbins, Commerce Trust Company, and others, the alleged nature of which is set forth in said opinion (L ¢. 434), to enjoin the enforcement of the judgment —— 60 rendered by the District Court of Harper County, Kansas, which was affirmed by the Supreme Court of Kansas in 136 Kan. 711. This opinion is particularly important be- cause it sets forth in great detail, contentions therein raised by the appellants and disposes of all of the same with un- usual directness and clarity. The Court disposed of, ad- versely to appellants, many of the contentions now raised by appellants. We shall later refer to some of the recitals therein, but in view of the present contention of the appel- lants that there was no adversary trial in the Harper County suit, we now reproduce what Judge Bratton said reference to that contention made in the bill filed by the present appellants in the District Court of Kansas, as follows (Moffett v. Robbins, 81 F. (2d) 431, 1. ¢. 437): **(13) The judgment is assailed on the further ground that there was no adversary trial. Louise Me- Grew Moffett, as sole beneficiary of the estate of Thomas S. Moffett, Grace Torrance Clark as adminis- tratrix with the will annexed of that estate and ad- ministering the estate of Moffett Bros. in Kansas, and all others having any interest in the estate of the part- nership, were parties to the action. The purpose of the proceeding was an accounting and partition; the issues were formed and the crux of the litigation concerned itself very largely with the asserted claim that the part- nership was indebted to the estate of John Moffett. Louise McGrew Moffett and Grace Torrance Clark together waged vigorous but unsuccessful opposition to that claim. Counsel who represented them were paid $3,900 from the partnership funds as compensa- tion for their service. Grace Torrance Clark made such payment. The trial consumed several days; all questions were seemingly considered thoroughly; ex- tended findings of facts and conclusions of law were made dealing with every feature of the complicated situation; and an exhaustive judgment was entered. In these circumstances, the mere allegation that there ELEED THROUGH POOR COPY 61 was no adversary trial is a conclusion which the record affirmatively disproves.”’ In addition to the foregoing cases, we are bringing to the attention of the United States Supreme Court, the following from the opinion in the case of Clark v. Moffett, 136 Kan. 711, |. ¢. 713: “The action came to this court on the pleadings (Moffett vs. Moffett, 131 Kan. 582 292 Pac. 947), where it was determined that the accounting prayed for was proper. ‘‘When the action went back to the trial court, broadly speaking, the only controversy between the parties was with respect to the accounting. The will of John Moffett had been construed as it affected some of the beneficiaries, both by this court (Moffett vs. Moffett, 131 Kan. 546, 292 Pac. 942) and by the supreme court of Missouri (Zombro v. Moffett, (Mo.) 44 S. W. 2d 149). There was no longer any controversy among the parties as to the share or interest which each of them should receive in the land to be partitioned except as the same might be modified by the accounting. ‘‘Broadly speaking, there were but three things to be determined in the accounting. First, were Moffett Brothers indebted to John Moffett individually at the time of his death, and if so, in what sum? Second, was Thomas S. Moffett indebted to the partnership of Moffett Brothers, and if so, in what sum? and third, was the Moffett Brothers Cattle, Land and Lumber Company indebted to Moffett Brothers, and if so, in what sum? In view of the many unwarranted questions now raised by appellants, we think it not amiss to further quote from Clark vs. Moffett, 136 Kan. 711, l.c. 714, as follows: ‘“‘This controversy, so comparatively simple in its broader aspects, as above outlined, has been compli- cated by the manner in which the litigation has been sonducted by injecting into it a number of questions relating to practice or procedure and technical ques. tions, many of which have little or no substantial merit, with the result that the parties have presented to this court for its analysis and its consideration 1740 pages of printed abstracts and briefs.’’ 62 That the appellants in that case did raise therein many of the questions now sought to be raised in the instant pro- ceeding, is readily apparent by the following statements appearing in Clark v. Moffett, 136 Kan. 711, 1. c. 720: ‘* Appellants contend that the Commerce Trust Com- pany is without capacity to represent the Moffett Broth- ers partnership in this action. When the case was in this court before, one of the points determined was that it was proper for the trial court to permit the Com- merce Trust Company to intervene in this action in its capacity as administrator of the partnership estate of Moffett Brothers. Ignoring the former determina- tion of this question, appellants present two reasons in support of their contention. First, that the appoint- ment was made by one who assumed to act as special judge, or judge pro tem., of the probate court of Jack- son County, Missouri, who was not so chosen in ac- cordance with the constitution and statutes of Mis- souri, therefore his order making the appointment is void. The trial court found that his selection was made on accordance with the constitution and statutes of Missouri, as interpreted by the supreme court of that state. The finding appears to be sound. But, passing that, he was there acting as judge of the pro- bate court and did make the appointment. No appeal has been taken from that order. The Commerce Trust Company bas been acting under the appointment since December 28, 1928. He was at least a judge de facto. The regularity of his appointment, or his acts as judge, cannot be collaterally attacked in this proceed- ing. (Briggs v. Voss, 73 Kan. 418, 85 Pac. 571; Keys v. Keys, 83 Kan. 92, 109 Pac. 985.) Sevond, it is ar- gued that even if the appointment of the Commerce ELEED THROUGH= POOR COPY 63 Trust Company in that capacity was made, it was for Missouri only and did not authorize it to appear in Kansas. Our statute (R. S. 22-1308) authorizes an administrator of another state to sue or be sued in this state.’’ In that case the Supreme Court of Kansas (I. c. 723) Iso passed on the contention of the then plaintiffs, now ppellants, that they did not have a fair trial therein, by he use of the following language: ‘Finally it is contended plaintiffs did not have a fair trial, and that this is indicated by rulings and remarks of the court as the trial progressed. We have carefully examined the record and all counsel have said on this point and find the contention to be devoid of merit.’’ Appellants now contend that there was no adversary rial in this case. In view of this contention, what is said by the Kansas Supreme Court in Clark v. Moffett, 136 Kan. |. c. 724, we think clearly disproves and refutes this contention : ‘“‘The third item is the one around which the battle of the trial raged. Much feeling was displayed. What caused this, or who is to blame for it, we shall not pause to consider, if, indeed, the record discloses. Perhaps because of it many contentions were made which were not well founded. Some tactics were indulged in, the obvious purposes of which were to impede rather than to aid the orderly administration of justice. With this attitude prevalent it is fortunate that the trial was before an able and experienced trial judge who could winnow the wheat from the chaff. While doing so the court gave the parties ample time for trial and a fair opportunity in the introduction of evidence. The judgment is fully sustained by the evidence, and, as we view it, in its main features, at least, is the only one which properly could have been reached from the evidence.’’ 64 The Supreme Court of the United States will also take judicial notice of the following recital in Clark vs. Moffett 136 Kan. 711, 1. c. 721, 722: ‘*Thereafter Louise McGrew Moffett filed a petition for removal to the federal court of what was alleged to be a separable controversy between herself and the defendants Renwick J. Moffett and Joseph W. Moffett with respect to the indebtedness of the estate of Moffett Brothers to the estate of John Moffett, and alleging diverse citizenship. When this was presented to the trial court it refused to order a removal of the cause. A transcript of the proceedings was duly filed in the United States district court. That court, after a hearing, ordered it to be remanded to the state court. There was, of course, no separable controversy between Louise McGrew Moffett on the one hand and Renwick J. Moffett and Joseph W. Moffett on the other with respect to the indebtednes: of Moffett Brothers to the estate of John Moffett.’’ The court wili also take judicial notice that the Supreme Court of Kansas reviewed, considered and passed upon the contention that there had been no revivor of the Harper County judgment, and expressly ruled that the cause was properly revived (1. c. 721). Under its decisions, had it been necessary to do so, the Missouri Supreme Court would have been entitled to take judicial notice of its opinion in the case of Zombro v. Moffett, 44 S. W. (2d) 149, above referred to. It is also interesting to note that in 193 S. W. (2d), 588, which contains Judge Clark’s opinion in ‘he instant case, the West Publishing Company in publishixg same, places immediately following the syllabi, the following recital: ** See, also, 237 M. A. 375, 162 S. W. (2d) 591.”’ We assume that this was done because of the following language appearing on page 591 of Judge Clark’s opinion: ‘The withdrawal of paragraph 45, which related to a suit brought by respondent Kopp against Mrs. ELEED THROUGH= POOR COPY _ — 65 Moffett, in no way affected the point made in the demurrers as to misjoinder of parties plaintiff or failure to state a cause of action.’’ The case mentioned by West Publishing Company is the identical case about which complaint was made in with- drawn paragraph 45. In the light of the foregoing, it seems to us that there is no possible justification for the contentions made by appellants that Judge Clark in his opinion erroneously stated that ‘‘They have not only had their day in court, but their months and years.’’ Appellees Helen Weede and Commerce Trust Company, as respondents in the instant case in the Missouri Supreme Court filed therein for the convenience of the Court: ‘Extracts from Appellants’ Abstract of the Record in Cause No. 36089 in the Supreme Court of Missouri, entitled ‘In re Moffett Brothers Partnership Estate,’ known as the Howard Fee Case (the opinion in which is reported in 345 Mo. 741, 137 S. W. 2nd, 907), pre- pared and furnished by respondents, Helen Weede and Commerce Trust Company’”’ explaining the reasons therefor by the following recital appearing on the cover page thereof: ‘‘(This photographic reproduction of said extracts is furnished because said Respondents have been in- formed that the files of the Court contain only one copy of Appellants’ Abstract of the Record in said last named cause; and this compilation is furnished solely for the convenience of the Court.)’’ and further explaining by the following recital appearing thereon: ‘“‘This compilation contains the following pages of said appellants’ Abstract of the Record, reproduced in page sequence: 116 to 254; 337 to 363; 701 to 733; 755; 756; 879 to 881; 998 to 1026; 1071 to 1086; 1095 to 1098; 1132 to 1135; 1142; 1146; 1147; 1150; 1152. 5g me The Exhibits bound in the original Abstract between pages 224 and 225, appear in this compilation between pages 225 and 226.’’ This was done because the Supreme Court of Missouri was entitled to take judicial notice of the record in the Howard Fee case (345 Mo. 741), above referred to, which was a companion case, and expressly brought to the atten- tion of the Missouri Supreme Court by appellants in numerous places in their Fifth Amended Petition, and directly raised again on appeal, and by their Jurisdictional Statement the action of the Supreme Court therein con- cerning same is now made the basis of further alleged grounds of complaint. These abstracts from the record contain, on the follow- ing pages, the following, all of which were offered and re- ceived in evidence in the Howard Fee case: 1. Petition ror an AccountTine anv Partition, filed by Thomas S. Moffett in the Harper County District Court (*113 to *122, both inclusive). 2. AmMenpep Seperate Repity or Grace Torrance Cuiark (*701 to *731, both inclusive). 3. Amenpep Separate Repity or Lovise McGrew Morrertr (*731 to *733, both inclusive). 4. Sripvtation in the Harper County suit signed by all of the parties plaintiff and defendant (*755, °756). 5. JournaL Entry or JupGMent in said cause, in- eluding Findings of Fact and Conclusions of Law (and also including Exhibit 8) (*116 to *253, both inclusive). 6. Morton to Cuanae, Mooiry, Strike Out anp Make AppitionaL Finpinos or Fact anp Conciusions or Law, filed by plaintiffs on January 12, 1932 (*337 to °361, both inclusive). We are also reproducing in the Appendix, on pages 146- 151 inclusive, the opinion of Judge Hopkins of the United ELEED THROUGH=— POOR COPY — 67 States District Court of Kansas in the case of Moffett v. Robbins, 14 Fed. Supp. 602. Paragraph 25 of the Fifth Amended Petition (236 to 240), among other things, refers to the partnership estates of Andrews, Lewis and Moffett, in which Thomas S. Moffett had a one-third interest, and of Moffett Brothers and Andrews, in which said Thomas S. Moffett had a one-third interest. Thomas 8. Moffett, after the death of John Moffett, took over the administration of these two partner- ship estates in Kansas with the consent of said Andrews, the then remaining partner. Shortly after the death of Thomas 8S. Moffett, Grace Torrance Clark secured an order in the Probate Court of Wyandotte County directing her to take possession of these two partnership estates and filed bond. Shortly thereafter, said Andrews filed a motion in the Probate Court of Wyandotte County, in which he asked leave to have the Court modify its order appointing Mrs. Clark. On the 30th day of March, 1931, the Court entered its order modifying its order so appointing her. The effect of this order was to withdraw from Mrs. Clark the right to administer these two partnership estates. The order was appealed to the District Court of Wyandotte County, which reversed the decision of the Probate Court. The case of Clark v. Andrews, 136 Kan. 23, 13 Pac. (2d) 294, contains the opinion on the appeal from the District Court of Wyan- dotte County. The Supreme Court in that case reversed the judgment of the District Court, with directions to sustain the order of the Probate Court from which the appeal to the District Court was taken. These last named facts are taken from recitals appearing in the opinion in the case of Clark v. Andrews, supra, as well as from recitals in said Paragraph 25. In Paragraph 25 of the Fifth Amended Petition, ap- pellants seek to challenge the correctness of the above —_ mentioned opinion of the Supreme Court. As we construe paragraph 25, they also seek to recover damages on account of the appointment of said Andrews. We shall not lengthen this Statement by reviewing the case of Clark v. Andrews, which covers almost eight pages, but shall content ourselves with reproducing the syllabi of the court in the opinion filed on July 9, 1932, which, as this Court knows, has peculiar significance under the constitution and laws of the State of Kansas: ‘*1. A probate court has authority at a subsequent term to which a matter has been continued to enter an order modifying its original order entered at the prior term appointing an administrator of partnership estates. ‘*2. Where a partnership composed of three persons is dissolved by the death of one, and administration of the partnership estate is commenced by one of the sur- vivors with the consent of his cosurvivor and the administering partner dies before such administra- tion is completed, the remaining partner upon com- plying with the provisions of R. S. 22-405 is entitled to administer upon the partnership assets as against the administratrix of the administering partner. ‘*3. The provisions of R. S. 22-328 that letters testamentary and of administration shall in no case be granted to a nonresident of this state will not be applied to defeat the right of a nonresident surviving partner to administer upon the assets of the partnership.’’ It thus appears from this opinion that the Supreme Court of Kansas, which is the court of last resort in the State of Kansas, expressly decided against all these contentions of appellants. Reference to this matter is incorporated herein because the case of Clark v. Andrews is one of the cases mentioned on page 592 of the opinion of the Supreme Court of d ELEED THROUGH= POOR COPY _ Missouri in the instant case, as being one where the matters of complaint were decided against appellants by a court of competent jurisdiction. In many places in the Fifth Amended Petition, ap- pellants make purported quotations from Moffett v. Mof- fett, 131 Kansas 582, Clark v. Moffett, 136 Kan. 711, and many other Kansas decisions. Examination of the Fifth Amended Petition will show in many instances the inclusion of asterisks in these quotations. We have reviewed all of these quoted excerpts in the light of the omission of recitals indicated by asterisks, and respectfully submit that in many instances these omissions and elisions result in false and erroneous application of the quoted excerpts, and the wrest- ing and stripping of certain parts from their context. The stipulation for accounting hereinbefore referred to on pages 56 and 66 of this part of this Statement, appears in full in the Abstract of th: Record in the Howard Fee case, on pages (*755, °756) and is in words and figures as follows (omitting the signatures of parties other than the plaintiffs) : ‘‘In the District Court of Harper County, Kansas Grace Torrance Clark, Administratrix etc., et al. Plain- tiffs v. Helen Moffett, et al. Defendants and Commerce Trust Company, Executor ete. and R. O. Robbins, Administrator with the will annexed of John Moffett, deceased, Intervenors No. 7374. SrrPuLaTIOn ‘‘We, the undersigned, being all of the parties, plain- tiff, defendant and intervenors in the above entitled cause hereby stipulate and agree that said cause may be set down for a hearing on Wednesday, October 14th, 1931, before the court at 10:30 o’clock a. m. on said day and further stipulate that in the event an accounting should be ordered by the court herein the said parties hereto hereby agree that further proceedings in said 70 cause shall go forward without delay, or at such time as the court may order. Grace Torrance Ciark Adma. Loviss McGrew Morretr Plfs. By A. E. Watson their Atty.’’ The record in the Howard Fee case shows (°117, *118) : ‘se 6) 6* ~=and, thereupon the said defendant Helen Moffett presented her motion for a preliminary judg- ment for an accounting in this action together with a stipulation on file in words and figures as follows, to-wit: (Here appear the recitals in the body of the above stipulation.) ‘* And thereupon the Court after argument and state- ments of counsel and being fully advised in the prem- ises, does sustain said application and it is then and there by the court ordered, adjudged and decreed that all parties to this cause, plaintiffs, defendants and in- tervenors be and they are hereby ordered to account as to said Moffett Brothers partnership affairs, busi- ness and property; and by virtue of the stipulation as aforesaid the accounting is ordered to go forward without delay and thereupon the court announced the burden of proof to be upon the defendants and the intervenors.’’ In the light of the foregoing, it seems to us that there is no possible justification for the contentions made by the appellants that the Missouri Supreme Court in its opinion in the instant case, erroneously stated: ‘*Most if not all of these questions have been decided adversely to appellants by courts of competent juris- diction in suits brought by appellants or in which they actively participated as defendants,”’ ELEED THROUGH POOR COPY 71 or erroneously stated that: ‘“'They have not only had their day in court, but their months and years.”’ vil Judicial Notice (a) This Court will take judicial notice of its records in former cases companion to and interrelated with the instant case, and growing out of transactions pleaded in the instant case, where this Court has denied certiorari on such former cases. (b) The Supreme Court of Missouri in the instant case was entitled to take judicial notice of its own records in former cases closely interwoven with, companion to and interdependent with the instant case and to take judicial notice of the public statutes and judicial decisions of the State of Kansas pleaded in the instant action. (c) The Circuit Court of Jackson County, Missouri, in the instant case was entitled to take judicial notice of all prior proceedings of said Circuit Court and of any division thereof in the instant case, all of the divisions thereof constituting but a single court. (Appellants’ As- signment of Errors, Nos. 1 to 13 both inclusive, 25, 27, 28, 32, 35 and 36.) (a) Matters of Which this Court Will Take Judicial Notice Herem It is incumbent upon the appellees to bring to the atten- tion of this court the matters of which they desire judicial notice to be taken. Shapleigh v. Mier, 299 U. S. 468, 81 L. Ed. 355, 57 S. Ct. 261. We therefore solicit the attention of the court to its records in the following cases as appel- lants are seeking in the instant case to avoid the effects of the adverse judgments in each thereof : 1. Helen Moffett, Appellee, v. Thomas S. Moffett et al., Appellants, 131 Kan. 546, certiorari denied by 72 this court March 9, 1931, 283 U. S. 826, 75 L. Ed. 1440, 51 S. Ct. Rep. 351. 2. Grace Torrance Clark, et al., Appellants, v. Helen Moffett, et al., Appellees, 136 Kan. 711, 18 Pac. (2d) 555, certiorari denied by this court October 9, 1933, 290 U. S. 642, 78 L. Ed. 558, 54 S. Ct. Rep. 61, Leave to file petition for rehearing denied Dec. 11, 1933, 290 U. S. 602, 78 L. Ed. 528, 54 S. Ct. 227. 3. Louise McGrew Moffett, individually and as execu- tri, etc., Appellants, v. R. O. Robbins, Admr. etc., Appellees, 81 F. (2d) 431, affirming 14 Fed. Supp. 602, certiorari denied by this court May 18, 1936, 298 U. §. 675, 80 L. Ed. 1397. At appropriate places, we have referred to and set out the respective Assignments of Error made in the applica- tions to this court for certorari in each of the above cases, showing the contentions made on this appeal which have been heretofore presented to this court in each of the former cases. In U. S. v. Pink, 315 U. S. 203, 86 L. Ed. 796, 62 S. Ct. 552, this court, through Mr. Justice Douglas, held that this court will take such notice of a foreign law as the state court whose judgment is under review could have taken and that where it was contended the complaint and the defense were substantially the same in the instant case as in a former one, where the judgment was affirmed in the United States Supreme Court and the former case was not res judicata since respondent was not a party thereto, that the United States Supreme Court would take judicial notice of the record in the former case, including the evidence contained in the record. As to the latter poiat, the court said; 315 U.S. 1. ¢. 216, 86 L. Ed. 1. ¢. 810, 811: ‘*The upshot of the matter is that we now reach the issues in Moscow F. Ins. Co. Case in so far as they are ELEED THROUGH= POOR COPY 73 embraced in the pleadings in this case. And there is no reason why we cannot take judicial aotice of the record in this Court of the Moscow F. Irs. Co. Case. Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 217, 46 L. Ed. 1132, 1134, 22 S. Ct. 820; Dimmick v. Tompkins, 194 U. S. 540, 548, 48 L. Ed. 1110, 1113, 24 S. Ct. 780; Freshman v. Atkins, 269 U. S. 121, 124, 70 L. Ed. 193, 195, 46 S. Ct. 41, 6 Am. Bankr. Rep. (N. 8S.) 744. eo e eo ‘‘We do not stop to review all the evidence in the voluminous record of the Moscow F. Ins. Co. Case bearing on the question of the extraterritorial effect of the Russian decrees of nationalization, except to note that the expert testimony tendered by the United States gave great credence to its position.’’ As to judicial notice of foreign law which the Supreme Court of Missouri could take, and consequently which this court can take under U.S. v. Pink, supra, Sec. 958 R. 8. Mo. 1939. ads: ‘‘In every action or proceeding wherein the law of another state of the United States of America is pleaded, the courts of this state shall take judicial notice of the public statutes and judicial decisions of said state.’’ The Fifth Amended petition ruled upon in the instant case pleads Clark v. Moffett, 136 Kan. 711 (164, 230 and elsewhere). It pleads the companion cases of Clark v. Andrews, 136 Kan. 23 (238, 239), and Moffett v. Moffett, 131 Kan. 582 (231). It pleads a multitude of statutes and other decisions of the State of Kansas. (166, 167, 179, 180, 186, 187 to 193, 200 to 208, 236, 239, 240, 245, 250, among others.) The Fifth Amended Petition also pleads by date of rendi- tion and alleged points covered, the decision of the Supreme Court of Missouri in the Howard Fee case, 345 Mo. 741, 137 8. W. 2,507. This is mentioned here as an aside, because it clearly brings the Howard Fee case opinion before this court. 74 In Corbett v. Terminal Railroad Assn., 336 Mo. 972, |. « 980, 82 S. W. 2, 97, the Supreme Court of Missouri held with reference to Sec. 958, R. S. Mo. 1939 that: ‘*We readily agree that under our statute the proper pleading of the law of another state requires our courts to take judicial notice not only of the law itself, such as a statute of such state, but also of the judicial decisions of such state interpreting or construing such law or statute. (Ramey v. Railroad, 323 Mo. 662, 21 S. W. 2d 873, 877, Menard v. Goltra, 328 Mo. 368, 40 S. W. 2d 1053.)’’ This Court takes judicial notice of its own records in a pending cause and also of records in cases formerly lodged in that court whether they be companion or interrelated proceedings or those formerly had therein by one of the parties to the pending case in which judicial notice of the record of the former case is taken. This is true as to the record of denial by the Supreme Court of certiorari at a previous stage in the same case. Aspen Mfg. & Smelting Co. v. Billings, 150 U.S. 31, 37 L. Ed. 986; and it is also true as to denial of certiorari by the United States Supreme Court in another case growing out of the same general subject matter or controversy. Friezler v. Boatmen’s Bank, 212 U. 8. 364, 53 L. Ed. 551, 1. ¢. 556, 557. Under the former practice, where in a murder case the United States Supreme Court had dismissed a writ of error to the highest court of the State for lack of Federal juris- diction, on a subsequent appeal from an order of the United States Circuit Court denying habeas corpus this court not only took judicial notice of its denial of a writ of error in the murder case but further assumed that in the application for such writ of error no point ‘‘on which the jurisdiction might have been sustained was overlooked,’’ 42 L. Ed. |. «. 409. ELEED THROUGH= POOR COPY 75 In DeBearn v. Safe Deposit & T. Co., 233 U. 8. 24, 58 L. Ed. 833, an appeal from the U. 8. District Court to review a decree sustaining a demurrer to and dismissing a bill, the judgment being that the cause be dismissed for want of Fed- eral jurisdiction, the first syllabus in 58 L. Ed. reads: ‘*A direct appeal from a Federal district court to the Supreme Court may not be maintained on the theory that rights under the Federal Constitution were in- volved, where the supposed constitutional questions have already been twice decided by the Supreme Court to be so wanting in merit as not to afford ground for the exercise of jurisdiction to review the judgments of a state court of last resort.’’ (Emphasis added.) The above seems very pertinent to the instant case. The opinion by Chief Justice White, holds: ‘* ‘We take judicial notice of our records, azd, if not res judicata, we may, on the principle of stare decisis, rightfully examine and consider the decision in the former case as affecting the consideration of this ;’ and again, as further declared in Dimmick v. Tompkins, 194 U. 8. 540, 548, 48 L. Ed. 1110, 1113, 24 Sup. Ct. Rep. 780; ‘The court has the right to examine its own records and take judicial notice thereof in regard to proceedings formerly had therein by one of the parties to the pro- ceedings now before it.’ Availing of this power and making reference to the records of this court, it appears that the controversy as to the validity of the attach ments with which the appeal before us is concerned has, on three different occasions, been here considered.”’ (Emphasis added.) In Bienvilie Water Supply Co. v. Mobile, 186 U.S. 212, 46 L. Ed. 1132, an appeal from the U. S. Circuit Court the fol- lowing is from the opinion by Mr. Justice Brewer: ‘‘It appears that the decree in the other suit was ren- dered in the circuit and affirmed in this court about seven months before the decision of the present case in 76 the circuit court. As against this, it may be said that the decree in the other suit was neither pleaded nor proved, and no question of res judicata can be con- sidered unless the earlier decision is formally presented on the hearing of the later case. This, doubtless, is technically true, but we take judicial notice of our own records, and, if not res judicata, we may, on the princi- ple of stare decisis, rightfully examine and consider the decision im the former case as affecting the con sideration in this.’’ (Emphasis added.) (b) Judicial Notice by Missouri Supreme Court of Its Own Records in Other Cases The Missouri Supreme Court will take judicial notice of the record before it in other cases when the public interest in ascertaining the truth is of paramount importance ; where the cases are so interwoven or interdependent as to invoke a rule of judicial notice, and this is true even as to taking notice in one division, of the stricken portion of an answer in the record of the former suit in the other division of the court. In Sabol v. St. Lowis Cooperage Co. Mo. Div. 2, 31 S. W. 2, 1041, L. ¢. 1043, it was held: ‘*The errors assigned by plaintiff to the srbsequent action of the trial court in sustaining defendant's objec- tion to the introduction of evidence must be determined upon the pleadings as they were before that court, after part of defendant’s answer had been stricken. It does not follow, however, that we are precluded from con- sidering the opinion of Division 1, because that part of defendant’s answer embodying the same was stricken out. That opinion is part of the records of this court, of which we take judicial notice. 23 C. J. 110 #1918; Keaton v. Jurndt, 259 Mo. 179, 168 S. W. 734.’’ And in Knorp v. Thompson, 352 Mo. 44, I. c. 52, 175 S. W. 2, 889, 1. c. 894, it is said: “Of course a court can judicially notice its own ree- ords, and courts, when justice requires, should and do, ELEED THROUGH= POOR COPY — 77 in deciding a case, consider the records of other cases, as‘* °* * where the interests of the public in ascer- taining the truth are of paramount importance, as also in cases where the court is seeking to determine what is a reasonable exercise of its discretion, or whether the present proceeding is merely a moot one. And ‘there may be cases so closely interwoven, or so clearly inter- dependent as to invoke a rule of judicial notice in one suit of the proceedings in another suit.’ 23 C. J., pp. 113-114; Thompson v. Scott, supra. See also 31 C. J.8., Evidence, sec. 50.’ ’’ (c) Judicial Notice Taken by Missouri Circuit Courts of Its Records in the Same Case Judge Ridge, in ruling upon the Fifth Amended Petition, properly took judicial notice of all prior proceedings and rulings by his colleagues sitting in other divisions of the same court. A cireuit court of the State of Missouri must take judicial notice of the state of the record and of all proceedings had before it in the same litigation. Fears v. Riley, 148 Mo. 49, L. ¢. 60, 49 S. W. 836. In Pelz v. Bollinger, 180 Mo, 252 1. c. 262, the Supreme Court said that the circuit court ‘‘was bound to take judicial notice of all proceedings before it in the same litigation.”’ In State ex Rel. v. Landwehr, 332 Mo. 622, 1. c. 628, 60 §. W., 4, the Supreme Court of Missouri, en banc, held : ‘‘ Jurisdiction of circuit courts is fixed by law and not by rules or orders of the court. There is but one circuit court in the City of St. Louis, composed of eighteen parts called divisions. (Goddard to use of Hyde v. Delaney, 181 Mo. 564, 80 SW 886; In re Clark, 208 Mo. 121, 106 S. W. 990. There being but one circuit court necessarily there is but one jurisdiction. * * * each division of the court has all the jurisdiction of the court of which it is a part, unless otherwise provided by law.”’ 78 And in Case v. Smith, 215 Mo. App. 621, 1. ¢. 628, 257 8. W. 148, 1. c. 150, the Kansas City Court of Appeals held: ‘*The circuit court of Jackson county is one court, though it has different divisions, which are separate . only to the extent that where a case has been assigned to and is pending in one division no other division has jurisdiction thereover, and cannot have, until the case has been duly transferred to such other division.”’ We appreciate that the denials of certiorari by this court in the cases involved in litigation by the Moffetts cited at the beginning of this point, do not have the conclusive effect of general judgments; but in view of the decision of this court cited under the first subdivision of this point, we sub- mit that if the appellants can maintain the instant litigation, res judicata and stare decisis ceases to have meaning except for antiquarian research; and that if the law rightly can breathe life into the charred remains of the Moffett litiga- tion to which we have referred, hereafter no one may be **called in question of the hope and resurrection of the dead”’ (Acts. 23:6). Vill Appellants’ Assignment of Error No. 2 (See Appellants’ Jurisdictional Statement, Page 8). In Assignment No. 2 Appellants claim that the Supreme Court of Missouri, 193 8. W. 2d 588, violated Appellants’ constitutional right by failing to give res adjudicata effect to its own decision in re Moffett Brothers Partnership Estate, 345 Mo. 741, that such refusal to follow its own decisions denied Appellants’ their right under the Fourteenth Amend- ment. No constitutional question was involved or decided in 345 Mo. 741. Indeed no constitutional question was decided ELEED THROUGH POOR COPY —_— 79 by the Missouri Supreme Court in the instant case except the validity of Section 948, R. 8S. Mo. 1939. The case of Moffett v. Moffett, 345 Mo. 741, was not necessary to a decision in the instant case. Appellants erroneously con- tend otherwise and state that the Court held in that case that the Appellants therein could sue jointly there and therefore they could sue jointly here. The case, 345 Mo. 741, originated in the Probate Court of Jackson County, Missouri. Briefly, it was a claim for compensation as attorneys’ fees rendered in the Moffett Estates. That was the only issue. The fees were allowed, appeal was had to the Cirenit Court of Missouri and affirmed, and appeal was had to the Supreme Court of Missouri. The juris- diction of the Supreme Court was derivative. There was only one question that was involved or could be involved. The Supreme Court of Missouri could not and did not enlarge its jurisdiction and consider other issues. On page 508 (137 S. W. 2d) the Court said: “The record covers nearly 1,400 pages and the briefs cover nearly 700 pages, and many alleged grounds are urged by appellant to support the con- tention that the judgment should be reversed, but the conclusion we have reached makes it unnecessary to consider but one of these grounds, viz., that under the facts claimant is not entitled to any fee from Moffett Brothers Estate * * °* (512) The Judgment should be reversed and the cause remanded with di- rections to enter a judgment denying claimant any additional fees, but approving the payment of the $1,300.00, and it is so ordered.”’ In the opinion of Judge Clark in the instant case, 193 §. W. 2d, |. ¢. 592, the Court said: “In Re: Moffett Brothers etc., 345 Mo. 741 ° ° ° grew out of an attorney fee allowed B. C. Howard for representing Commerce Trust Company as Admin- ie istrator of the partnership estate. Mrs. Moffett in. dividually and as Executrix of her husband resisted the allowance in the Probate Court, Circuit Court, and Supreme Court. No point presented or decided ag to Mrs. Moffett’s right to appear in both capacities. The only point decided was that Howard was not entitled to an additional fee. 345 Mo. 1. c. 745; 137 8S. W. 2d 1. «. 508. Some of the respondents in the instant case were not parties to that suit. Certainly the decision in that case is not res adjudicata as to the sufficiency of the petition in the instant case.’’ The Supreme Court of Missouri merely interpreted its own opinions which happened to be contrary to the inter. pretation of Appellants. Not having decided any con. stitutional question, this Court will not review the opinion of the Missouri Supreme Court. Assignment No. 2 is unsubstantial and has no foundation in fact or law. In the Howard Fee case, 345 Mo. 741, 1. c. 746, the court further said: ‘December 22, 1928, the trust company, proceeding under Section 86, Revised Statutes 1929 (Mo. Stat. Ann., sec. 86, p. 52), claims to have become adminis- trator of Moffett Brothers estate in Missouri. It is contended by appellant that the trust company was not legally authorized to administer the Moffett Brothers estate, but, as stated, we shall consider only one question.’’ Appellants seek to invoke what the Missouri Supreme Court has called ‘‘the hitherto unheard of doctrine of judgment by implication.’’ In Dwwal v. Duval, 316 Mo. 626, 1. c. 635, it, through that distinguished and veteran jurist, Judge Robert F. Walker, spoke thus: **To contend in the face of the plain and unmistaka- ble words of this opinion that it was intended to include things not expressed therein, but on the contrary, intentionally omitted therefrom, is to invoke the hith- erto unheard of doctrine of judgment by implication.’’ ELEED THROUGH= POOR COPY 81 Furthermore, Howard’s claim for fees originated in the Probate Court and was appealed to the Circuit Court and from thence to the Supreme Court. The jurisdiction of the Circuit and Supreme Courts, respectively, on appeal, being purely derivative, was confined exclusively to such jurisdiction as the Probate Court originally had. It could not be enlarged to any extent or in any particular by reason of the appeals. See in re: Mills Estate, 162 8. W. (2d) 807; State ex Rel. Burns v. Woolfolk ,303 Mo. 589. Appellants filed in the Supreme Court of Missouri in the Howard fee case, a motion to tax costs therein, and the Court sustained said motion by an order in words and figures as follows: ‘‘And now the Court having seen and fully con- sidered appellant’s motion to tax cost, doth order that said motion be, and the same is hereby sustained in the sum of $979.05, said costs to be taxed against respondent B. C. Howard.’’ Thereafter, appellant Louise McGrew Moffett, filed in said Court a motion to modify the order, above-mentioned, taxing costs. Commerce Trust Company filed in the Su- preme Court of Missouri written suggestions in opposition to the last mentioned motion. It is to be noted that in the aforesaid motion to modify the order taxing costs, the ap- pellants stated : ‘‘That Commerce Trust Company has in its posses- sion a sum in excess of ten thousand dollars ($10,000) belonging to Moffett Brothers Partnership Estate and that appellant Louise McGrew Moffett expended from her own funds the amount of the costs taxed against respondent B. C. Howard and that in appealing the said cause and defraying the expenses of the appeal said Louise McGrew Moffett was engaged in the per- formance of a duty which should have been performed by the respondent Commerce Trust Company in the 69 ee capacity which it unlawfully assumed, to-wit: Admin- istrator of Moffett Brothers Partnership Estate. See Harrington v. Evans, 49 Mo. App. 372. That for said reason the said Louise McGrew Moffett is entitled to be reimbursed by respondent commerce Trust Com- pany individually or in any event out of the partnership assets from funds of that estate to justify her expendi- tures benefited.’’ and attempted to justify the taxation of costs against commerce Trust Company in its individual capacity on the above-recited grounds. On may 7, 1940, said Court entered an order overruling said motion of appellants to modify the order taxing costs. IX In Appellants’ First Assignment of Error (see also Page 7, Appellants’ Jurisdictional Statement) it is claimed that the Supreme Court of Missouri, 193 8. W. 2d 588, denied Appellants their constitutional rights by holding that “the petition did not state a cause of action.” The opinion itself (1. c. 592) shows the contrary. The matter appealed from was the judgment of Judge Ridge, which, broadly speaking, held that there was a misjoinder of parties plaintiff. The opinion of the Missouri Supreme Court, after discussing Appellants’ contentions and assign- ments of error, said (1. c. 592) : ‘* Appellants make many other assignments of error * ©* * None of these assignments is germane to the question of whether the Fifth Amended Petition contains a misjoinder of parties plaintiff or fails to state a joint cause of action. We hold the judgment is correct in form and in accordance with law, and it is therefore affirmed.’’ ELEED THROUGH POOR COPY as In the opinion, 193 S. W. 2d 588, 1. c. 591, the Supreme’ Court expressly stated: ‘‘The petition fails to state a joint cause of action and it was unnecessary for the trial court and is un- necessary for this court to determine whether a cause of action is stated in favor of Mrs. Moffett in either capacity. Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S. W. 2d 440, loc. cit. 443; Doerr-Engel v. Tide Water Oil Co., 342 Mo. 1141, 119 S. W. 2d 402; Neider- berg v. Golluber, Mo. Sup., 162 S. W. 2d 592, loc. cit. 599. Judge Ridge sustained the demurrers on the sole ground of misjoinder of parties, but the demurrers also attacked the petition for misjoinder of alleged causes of action and for failure to state a cause of action. We think the reason assigned by the trial court is sufficient.’’ All of these cases clearly support the pronouncements of the Court. Other than the validity of Section 948, R. S. Mo. 1939, the Supreme Court of Missouri passed on no constitutional question. This Court will not review the decisions of the Supreme Court of Missouri touching issues upon which that Court did not pass. We might rest this point here, but, in order to demon- strate the unsoundness of Appellants’ Assignment No. 1, may we suggest that the separate demurrers to Appellants’ Third Amended Petition and also to their Fifth Amended Petition admitted only the well-pleaded facts therein. They did not admit Appellants conclusions of law and fact. The Appellants’ claim that said demurrers admitted that Judge Hay was corrupt is refuted by the petitions themselves and by the specific declaration therein. The Third Amended Petition disclaims that the words ‘‘corrupt’’ or “eorruption’’ were used therein relative to Judge Hay (Appellants’ Abstract, 299-300). Appellants’ J urisdic- ae 84 tional Statement also disclaims it (Page 43), in which the following improperly appears: ‘*Appellees have admitted that the acts of the Kan- sas State District Judge, which they twice admitted to be true (once in their demurrer to the Third Amended Petition and once in their demurrer to the Fifth Amended Petition), were acts of a corrupt judge (299). Appellants had not used that language.”’ We feel it fair to this Court and to justice to state there is nothing in the record that justifies the Appellants’ charge that Appellees in any manner, in any place, ever admitted that the acts of Judge Hay were corrupt. On the very contrary, this record shows from beginning to end that the exact opposite is true. Both of said Third and Fifth Amended Petitions, touching the charge of fraud and corruption as related to Judge Hay, were nebulous, uncertain, and reached no higher point than innuendoes. Under such charges the demurrers did not admit Plaintiffs’ present contention that Judge Hay was corrupt. In order to make a valid charge of fraud or corruption facts must be pleaded from which fraud must necessarily be implied. In Weitzman v. Weitzman, 156 8. W. 2d 1. ¢. 908, the Su- preme Court of Missouri said: ‘*Considering as true the ultimate facts pleaded, we find them insufficient to state a cause of action in fraud. To state a good cause of action in fraud sufficient facts must be pleaded from which fraud must necessarily be implied. ‘‘The ultimate facts pleaded and not the conclu- sions of the pleader control. The rule is well stated in 27 C, J. 31, Sec. 147: ‘**A declaration or other pleading setting up fraud as a basis of recovery of damages must clearly and distinctly allege all of the essential elements of action- BLEED THROUGH= POOR COPY 65 able fraud * * °* A characterization of acts as fraudulent which are not fraudulent per se is not suffi- cient. It must be made to appear by the facts alleged, independent of mere conclusions, that if the allega- tions are true a fraud has been committed.’ ° ° ° ‘Fraud is never presumed, but must be proved by clear and convincing evidence, and he who charges fraud has the burden of so proving it.’’ In the case of Sabin v. Home Owners Loan Corporation, 151 F. (2d) 541, the United States Circuit Court of Appeals for the Tenth Circuit, in affirming a summary judgment for the defendants, said, |. ¢. 542: ‘Flimsy or transparent charges or allegations are insufficient to state a justiciable controversy requiring the submission thereof for trial. * * ° The state- ment that the trial court was overreached is a mere conclusion and not a statement of fact. This assign- ment of error does not merit any serious consideration or extended discussion. It is sufficient to say that the manner in which the foreclosure action was tried by the trial judge was the issue in the appeal to the Okla- homa Supreme Court. All the questions now urged as to the admission of evidence or other rulings of the trial court were urged then. The Supreme Court found no error in the manner in which the trial was conducted, and found that it had been in all respects in conformity with the law of the State.’’ This case parallels the instant case. An application for writ of certiorari was denied by this Court on May 7th, 1946, being Cause No. 952. In Kithcart v. Ins. Co., 88 F. (2d) 1. c. 410, Judge Gardner, speaking for the Eighth Circuit, said: “On motion to dismiss, all well-pleaded facts, but not conclusions, are admitted. “It may be gathered from the allegations of the bill that it was the claim of plaintiff that through the _ a 86 fraudulent acts of defendant, he was prevented from producing certain testimony * * ° Just what evi- dence plaintiff was prevented from producing is not made clear. Neither is it clear what acts were com- mit * * © which it is claimed constituted fraud * * * It is elementary that a bill of complaint charging fraud must set out with some degree c particularity the material facts claimed to constitute the fraud (citing authorities).’’ The Court will note that Appellants’ Third Amended Petition consisted of 73 pages and was filed September Zist, 1943 (Appellants’ Abstract, 62-135) ; that Appellants’ Fifth Amended Petition, consisting of 200 pages (Appel- lants’ Abstract, 154-354) was filed November Ist, 1944, several years after all of the Moffett litigation had been decided adversely to them in the various jurisdictions. For instance, Moffett etc. v. Moffett etc., 131 Kans. 582 affirmed the judgment of Judge Hay November 8th, 1930; Clark etc. v. Moffett etc., 136 Kans. 711, affirmed Judge Hay on January 28th, 1933; and thereafter certiorari was denied by this Court, 290 U. 8S. 602, 290 U. 8. 642. The United States District Court for the State of Kansas in Moffett etc. v. Robbins etc., 14 Fed Sup. 602, sustained Judge Hay on September 4th, 1935. The United States Cireuit Court of Appeals in Moffett etc. v. Robbins etc., 81 F. (2d) 421, sustained Judge Hay January 15th, 1936, and thereafter this Court denied writ of certiorari, 298 U. 8. 675. Your Honors will note that Appellants’ Assignment No. 1 is an effort to undo all of this litigation on the baseless charge that the demurrer to the Third Amended Petition filed in 1943 admitted that Judge Hay was corrupt con- cerning a petition that shows on its face that such charge of ‘‘corruption’’ was not made, but, on the contrary, denied. ELEED THROUGH= POOR COPY &7 If Appellants plead that a demurrer admits the cor- ruption of a trial judge and the same pleading denies that corruption was charged, then there is a conflict, which, of course, precludes the claim that the demurrer admits such a charge. In State ex rel. v. Horner, 187 8. W. 2d 976 (Mo, App.) Syllabus 3 reflects the opinion of the Court, and is as follows: ‘Conflicting allegations are not admitted by a de- murrer.’’ We are endeavoring to save time and space but beg to add one more case. In Amber v. Choteau, 107 U. 8. 586, 591, the Court held that the words ‘‘fraud’’ and ‘‘con- spiracy’’ alone, no matter how often repeated in a plead- ing, can not make a case for the interference of a court of equity. They have no more effect than other words of the same unpleasant signification. This principle was well stated im Losch v. Pickett, 36 Kans. |. c. 222, where it was said: ‘(A plaintiff should in all cases be bound by his allegations deliberately made * * ° A party to an action should not be allowed to obtain benefits from contradictory and inconsistent allegations deliberately made in his pleadings * * ° The spirit of our civil code is that a party shall state in his pleadings the real facts of his case and not falsehoods or fictions * © © A thing can not be true and untrue at the same time, and any pleading containing allegations made by the same party both affirming and denying a particular thing carries falsehood on its face.’’ This Court will note that the demurrer complained of was lodged against the Third Amended Petition and not against the Fifth Amended Petition (the instant petition) consisting of 200 pages and filed more than a year later. We think that it is our duty while we are on the point of the integrity of Judge Hay, which is being assaulted, that we give you the appraisal of the Supreme Court of Kansas. In Moffett etc. v. Moffett etc., 136 Kans. |. c. 724, the Supreme Court of Kansas said: ‘*Perhaps because of it many contentions were made which were not well founded. Some tactics were indulged in, the obvious purpose of which was to im- pede, rather than to aid, the orderly administration of justice. With this attitude prevalent, it is fortu- nate that the trial was before an able and experienced trial judge who could winnow the wheat from the chaff. While doing so, the court gave the parties ample time for trial and a fair opportunity in the introduction of evidence. The judgment is fully sustained by the evi- dence, and, as we view it, in its main features, at least, is the only one which properly could have been reached from the evidence.’’ All of the allegations of forgery, criminal conspiracy, fraud, ete., charged against the Appellees may properly be reduced to a single point, to-wit: Exhibit 8 in the Harper County partition-accounting suit tried by Judge Hay. That Exhibit was an exposition of the condition of the Moffett books, which was the basis of the litigation. When Your Honors examine the Abstract o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0161%3A05. Public record. Not legal advice.