Cook v. Penrod

111 Mo. App. 128 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — 1. It is elementary law that the records and proceedings of a court of record are not open to attack by oral testimony as they are conclusively presumed to have been correctly made. [1 Greenleaf on Evidence, section 19.] If this was not the law, there would be no end to inquiry and nothing would be finally settled in a court of justice however often it might be solemnly adjudicated, therefore, plaintiffs’ objection to the evidence offered to impeach the records showing the various adjournments of the Stoddard Circuit Court should have been sustained. But where the record impeaches itself, that is, where it shows on its face that the court had no jurisdiction to make it or that there was no court in session when the record was made and it could not be made by the judge in vacation, it should be treated as a nullity. It seems to me that the order of adjournment made on November 28, 1903, as spread upon the records of the court, and all the subsequent orders of adjournment keeping the court open until March 7, 1904, were made without authority of law and were wholly ineffectual for the purpose of keeping the Stoddard Circuit Court continuously in session. The law fixes the times when regular sessions of the circuit court shall be held in the various counties of the State. These courts cannot be lawfully held at any other time except where they are adjourned' over from a regular term or called specially in session by the judge of the court under the provisions of some statute. Section 1605, R. S. 1899, provides that an adjourned session of the circuit court may be held in continuation of the regular session, “when so ordered by the court in term time.” An order made in vacation is not an order of the court as there can be no such thing as a constructive session of a circuit court or a constructive presence of a judge of a circuit court at any term thereof. No authority is given to a judge of a circuit court to adjourn a regular session over to a future day except when he is unable , to attend and where he gives notice to the sheriff as provided by section 1604, R. S. 1899. This section provides:

“If, at any time after the commencement of a term, it happens that the court shall not be held according to its adjournment, it shall stand adjourned from day to day, until the evening of the third day; or if the judge of any court having but one judge cannot attend any regular term, he may notify the sheriff of the county in which such court should have been held, previous to the first day of such term; and it shall be the duty of such sheriff, by proclamation, at the courthouse door, to adjourn such court to the next regular term, or to such special or adjourned term as the judge shall direct.”

The order of November twenty-eighth to adjourn court to December twelfth and all the subsequent orders adjourning the court from time to time until March 7, 1901, were attempted to be made" in pursuance of tbe foregoing section, but the section confers no such power on tbe judge. Tbe only authority be has under that section to adjourn tbe court is to give notice to tbe sheriff, “before tbe first day of tbe regular term,” to adjourn tbe court over to tbe next regular term or to some future day. This is tbe limit of bis power to adjourn a court when it is not actually in session and be present to make tbe order. When in session tbe judge may, by proper order of tbe court, adjourn tbe term to'such time as be sees proper, and on tbe day fixed for tbe adjourned term be may appear, have tbe court opened by proclamation of tbe sheriff and then in open court adjourn it over to some future day and may repeat this process as often as is advisable; but such orders cannot be made in vacation of court. Tbe record shows that tbe regular September, term of tbe Stoddard Circuit Court duly convened on tbe first day thereof and continued in session from day to day until October third, when it was adjourned until October twenty-second; that it again met on October twenty-second and continued in session from day to day until October thirty-first when, by proper order of tbe court, it adjourned until November fourteenth; that on November fourteenth, pursuant to tbe adjournment, tbe court again met in session and Avas duly adjourned over until November twenty-eighth; that it did not meet thereafter but Avas adjourned on ineffectual and void orders given by the judge to tbe sheriff Avhen tbe court was not in session. We hold, therefore, that tbe court was not in session after November 28, 1903, until it convened in regular session March 7, 1901, and that tbe orders of adjournment made on November 28, 1903, and all like subsequent orders impeach themselves and shoAv on their face that they are absolutely void. It folloAvs that tbe appeal from tbe judgment of tbe justice Avas not taken duriug a term of tbe Stoddard Circuit Court, therefore, tbe learned special judge did not err in overruling plaintiffs’ motion to dismiss the appeal for the reason it was not perfected in six days after the judgment.

2. In respect to the merits of the case it is conceded that the title to the land, for the possession of which the suit was brought, is in Laura Cook, wife of J. M'. Cook; that J. M. Cook, as the agent of his wife, on April 5, 1900, leased the premises to defendant for the year 1900; that on May 19, 1901, J. M- Cook agreed in writing to convey all of his interest in the land to defendant by quitclaim deed for a consideration of $225 to be paid two years thereafter, defendant to pay taxes on the land; that after the execution of this instrument, the defendant asserted right to .hold possession of the land, not as the tenant of Laura Cook but as the purchaser of the title or supposed title of J. M. Cook. It seems that Penrod failed to comply with his part of the contract of May nineteenth by paying the consideration or any part of it for the land and, on September 22, 1903, J. M. Cook, notified him that he cancelled the contract and demanded rent for 1901 and 1902, and also demanded the surrender of the possession of the premises on or- before January 1, 1904. This notice and demand was in writing and was mailed to defendant and received by him in regular course. Defendant refused to pay any rent or surrender possession and this suit was commenced.

The title to the land being in Laura Cook, the written contract of sale of May 19, 1901, made by J. M. Cook, did not in any respect whatever affect her title to the premises, as there is nothing in the record showing or tending to show that J. M. Cook had any right or authority from his wife to sell the land to the defendant or any one else. The lease for one year signed by himself, as his wife’s agent, was effectual for the reason she acquiesced in it and is presumed to have accepted its benefits, and if Penrod had not set up title in himself or claimed possession under the contract made between J. M. Cook and himself, he would have been a lessee under Laura Cook and his tenancy would have been from year to year-and he would' have been entitled to at least sixty days’ notice next before the end of the year 1903 of Laura Cook’s intention to terminate the lease. [Section 4109, R. S. 1899.] But having disclaimed title in Laura Cook, his lessor, by asserting his right to hold under his contract of purchase from J. M. Cook, he was not entitled to notice to quit. [Lyon v. LaMaster, 103 Mo. l. c. 614, 15 S. W. 767.] Under the undisputed evidence, plaintiff Laura Cook, the real party in interest and the only necessary party plaintiff, is entitled to the possession of the land.

The judgment is therefore reversed and the cause remanded for retrial • in accordance with this opinion.

All concur.