Cauthorn v. Berry

69 Mo. App. 404 | Mo. Ct. App. | 1897

Bland, P. J.

J. E. Cauthorn was the son of J. W. Cauthorn, O. M. Berry was the son of S. J. Berry (a female). It appears from the record that J. E. Cauthorn and C. M. Berry purchased from one G-. L. Eerris, of Mexico, Missouri, a threshing machine, on July 25, 1889, and executed their several promissory notes for the purchase price, payable to the order of Eerris, three of which are in evidence by this record, ■ 'all dated July 25, 1889, all for same amount, $350, due October 1, 1890, November 1, 1890, and January I, 1891, all bearing interest from date at the rate of eight per cent per annum, and if interest be not paid annually, to become part of principal and bear same rate of interest. They were all made payable at the Bank of Mexico, Mexico, Missouri. It appears from the testimony that Mrs. S. J. Berry authorized her son C. M. Berry, to use her name as security in the purchase of the machine, to the extent of $500; her name was signed to the three notes in evidence. It is also in evidence that C. M. Berry, at the time he executed these several notes, was under age. J. E. Cauthorn, without the consent or knowledge of J. W. Cauthorn, signed the name of the latter to all these notes; that some eight or ten days after the execution of the notes, J. W. Cauthorn went to Ferris, the holder of the notes, to inquire about them, and after some conversation with Eerris, signed all of the notes. There is. some evidence that he did this, under a threat from Ferris to prosecute his son, J. F. Cauthorn, for forgery. The three notes here described were, before maturity, assigned by Perris, two of them to M. J. Woodlan, and one to Alcinda Allen. On the thirtieth day of January, 1895, Alcinda Allen obtained judgment in the Audrain circuit court on the note she held against all the makers, J. E. and J. W. Oauthorn, and O. M. and S. J. Berry, for $422.24, with costs; judgment to bear interest at eight per cent, and on the same day, in the same court, M. J. Woodlan obtained judgment against the same parties, on one of the notes held by her for $534.14, this judgment also to bear eight per cent. On the twenty-eighth day of December, 1894, M. J. Woodlan recovered before a justice of the peace, in Audrain county, a judgment on the other of these notes, held by her, against all the makers, for $151.35, “this to have eight per cent.” A transcript of this judgment was filed in the office of the circuit clerk of Audrain county, on the twenty-third of March, 1895. On November 13, 1893, O. M. Berry acquired by warranty deed, eighty acres of land situated in Audrain county, described in plaintiff’s petition. On April 13, 1895, M. J. Woodlan, by her attorney, in fact, J. M. Marmaduke, assigned her two judgments to plaintiff, J. W. Oauthorn, for a valuable consideration, and on April 8, 1895, Alcinda Allen, by her attorney, in fact, J. M. Marmaduke, assigned her judgment to plaintiff, J. W. Oauthorn, in consideration of the full amount due on the same. O. M. Berry was twenty-one years of age at the time summons was served upon him in the several suits of Woodlan and Allen. It also appears from the record that J. W. Oauthorn paid .these judgments in full. It is also in evidence that J. E. Oauthorn turned over to his father, J. W.' Oauthorn, about $1,000 in notes, to indemnify him on account of these judgments, and that J. E. Oauthorn is insolvent.

Assigment of judgments: payment of debt by surety: subrogation: equity. This suit was originally brought against C. M. Berry and S. J. Berry, but was dismissed at the trial, as to S. J. Berry. The suit is in equity, based upon the foregoing facts, and seeks to subrogate the plaintiff, J. W. Cauthorn, to the rights and liens of Woodlan & Allen, plaintiffs in the several judgments herein mentioned as they existed at the dates these judgments were paid by Cauthorn, and to subject certain lands of defendant C. M. Berry (80 acres described in the petition) to execution on said judgments. Plaintiff also brought in the notes transferred to him by J. E. Cauthorn, and asks that they be placed in the hands of a receiver for collection for his benefit. Defendant C. M. Berry filed a separate answer, claiming the lands as a homestead, denying the execution by respondent of the several notes, on which the judgments were recovered; that respondent signed the notes under duress, and that he signed them long after he (Berry) had signed them. He also alleged a want of proper parties defendant. The land described in the plaintiff’s petition was acquired after the execution of the notes, upon which these judgments were obtained. The two circuit court judgments were recovered January 30, 1895. The transcript judgment was filed in the office-of the circuit court on March 23, 1895. The judgments were paid by, and assigned to Cauthorn, on April 8 and 13, 1895, so that their liens were in full force at the date of their payment and assignment. By the payment of these judgments by Cauthorn, as surety to Berry, an equity arose in his favor to have all the securities available to the creditors against Berry’s property transferred to him, and he has a right, through equity, to avail himself as fully of such security for his indemnity, as had the judgment creditors to enforce their liens by levy and sale under executions. Ferguson’s Adm’r v. Carson, Adm’r, 86 Mo. 673; Furnold v. Bank, 44 Mo. 336; Berthold Adm’x of Sarpy v. Berthold, 46 Mo. 557; Bank of Warren County v. Kimble, 61 Mo. App. 215; Harper v. Kimble, 65 Mo. App. 515.

Authority of assignor to assign: equitable assignee: subrogation. The appellant makes the further point that the record does not show that Marmaduke had authority to assign the judgments to respondent. It is unnecessary to examine the evidence on this point, inasmuch as ’ ^ payment of these judgments Cauthorn at once became the equitable as--1 signee of them by operation of his right of subrogation. Ferguson v. Carson, supra; Berthold v. Berthold, supra. The judgment in this case was rendered at the September, 1895, term of the Au-drain county circuit court. At the June term, 1896, and after an appeal had been granted, a mistake in the entry, of the original judgment was corrected, to which appellant took exceptions, and brings this matter here for review.

Judgment entry: misrecital of disputed facts: power of court to correct. The original entry of the judgment recited that Berry had acquired the land “before the signing and delivery of said notes to said Woodlan and Allen..” The entry as corrected reads that “C. M. Berry signed and delivered the notes upon which the judgments sued upon by Woodlan and Allen were based, u 1 said C. M. Berry acquired -and filed " an(^ recorded his deed to the land described in the petition, as belonging to said C. M. Berry.” The order correcting the original judgment recites that the error therein was a mistake. It is quite evident that it was a mistake; a misrecital of a fact that is undisputed, so far as the record shows, and we think there was no error in making the corrections. We have always understood that courts of record have the inherent power, at any time, to correct clerical errors and misrecitals of undisputed facts, that may bo made by their clerks, in writing up the formal entry of their judgments.

Judgments by default: defence of infancy: signing notes under dures. The defense of infancy is of no avail in this suit. Appellant was of full age, when the summons was served upon him. He suffered these judgments to go against him by default, and thereby lost his opportunity to interpose this defense. The plea that respondent signed the notes under duress, can not be made by appellant; this defense, if it existed, was personal to Cauthorn against the notes. Parker v. Roberts, 116 Mo. loc. cit. 662. The judgments by default on personal service concluded the whole matter, and extinguished all defenses that might have been made against the notes. These judgments impart absolute verity and are not open to such collateral attacks as are here attempted by the appellant.

Plea of defect of parties. Appellant pleaded by his answer a defect of parties. That both he and J. F. Cauthorn were the principal makers of the notes upon which the , judgments were obtained, is conceded. As an excuse for the nonjoinder of J. F. Cauthorn, it is averred in the petition that he was insolvent, but his property was brought in (the notes he had assigned to respondent) and disposed of by the judgment of the court, by placing them in the hands of a receiver, to be collected, and proceeds credited upon the judgments. His property was in court, if he was not there personally. Aside from this we see no force in the objection. This proceeding was to obtain an equitable execution against appellant; no new liability was sought to be imposed upon him. His liability on the judgments to Wo odian and Allen was for the full amount. His property could have been taken on executions sued out at their instance, for all of the debts and costs. The respondent is only seeking to accomplish, through equity, what Woodlan and Allen could have done at law. The omission to join J. F. Cauthorn as a party defendant, does not in the least increase the debt or cost against appellant, nor interfere in any way with any rights he may have against J. F. Cauthorn.

Plea of homesteadexemption. The court, by its judgment, found that the judgments of Woodlan and Allen, at the time they were paid by and assigned to Cauthorn, were valid and subsisting liens against the lands of appellant, described in the petition, and that appellant could not claim these lands as exempt from said liens, under the homestead act. While this finding would not in ordinary cases of this kind be proper, yet, as Berry pleaded the homestead exemption, he is in no position to complain because the court made a finding on that issue against him.

JUDGMENT in excess of amount asked. The circuit court rendered judgment for the whole amount of the several judgments, with eight per cent interest. This the respondent under the evidence was entitled to, but not under his pleading. He asks judgment for two

thirds of the amounts of this judgment; he should not have judgment for more than he asks. For this error, the judgment is reversed, with directions to the circuit court to enter judgment in conformity with this opinion. It is so ordered.

All concur.