Crossland v. Admire

149 Mo. 650 | Mo. | 1899

BRACE, P. J.

This is an action in ejectment to recover an eighty acre tract of land in Lincoln county. The petition is in common form. The defendant, though duly-summoned, did not answer or otherwise plead, and final judgment was entered against him. Afterward, upon the same day, on motion of defendant, the judgment was set aside, and from the order setting aside the judgment the plaintiff appealed to this court, where the appeal was dismissed on the twenty-first of November, 1893. [118 Mo. 87.]

The record entries of the proceedings thereafter had in the case, as shown by the transcript filed herein, are as follows, omitting caption and immaterial matters:

Mandate of Supreme Court “filed in vacation, December 11th, 1893.”

“April 4th, 1894,” “9th day of spring term,” “continued.”

“Oct. 9th, 1894,” “2d day of fall term,” “plaintiff by leave of court withdraws his application for a change of venue in this cause,” and on .the same day “plaintiff presents his bond for costs”......“which said bond is by the court approved and ordered filed.”

“And afterwards on the 19th day of December, 189.5, it being the 10th day of the fall adjourned term, 1895, the following further proceedings were had in said cause, to wit:

“Now here on this day come the parties to this suit by their attorneys, and all matters and things herein contained being submitted to the court of the following described lands, to wit: "West half of the northeast quarter of section 15, township 49, range 2 east, containing 80 acres. The court after hearing all the evidence in the cause, and argument of counsel, renders a verdict in favor of defendant for the possession of the following described premises, situated in Lincoln county, Missouri, to wit, the west half of the northeast quarter of section 15, containing 80 acres. It is ordered and adjudged by the court that defendant have and recover of plaintiff and G-eorge Crossland and Tames M. Lewis, as his sureties, Ms costs ,and charges herein incurred, and that he have execution issued therefor.”

Afterwards on the same day, plaintiff by his attorneys “file motion for new trial in words and figures as follows, to wit: (setting out motion); and on the same day “now here on this day come the parties to this suit by their attorneys and the motion heretofore filed for a new trial being taken up and submitted to the court is by the court continued.” “And afterwards, to wit, on the 23d of March, 1896, it being the first day of spring term, 1896, the following further proceedings were had in said cause, to wit: Now here on this day come the parties to this suit by their respective attorneys and the motion for a new trial heretofore filed being taken up and submitted to the court is by the court overruled. Affidavit for appeal filed. Appeal granted. Bond approved. Bill of ■exceptions to be filed in 30 days after end of term.”

“Afterwards, to wit, on the 2nd day of April, 1896, 9th day of spring term, the plaintiff filed with the clerk of the circuit court of Lincoln county, his affidavit for appeal, in words and figures as follows, to wit:” (then follows a copy of the filing of the affidavit, and appeal ‘bond, a copy thereof, and its approval in open court on the same day).

The next entry is as follows: “And afterwards, to*wit, on the 5th day of May, 1896, in vacation, the plaintiff filed his bill of exceptions in words and figures as follows, to wit,” and then follows the bill of exceptions, duly authenticated by the judge on the fourth of May, 1896, with the following subscription: “"We agree to the foregoing bill of exceptions, April 20, 1896,” signed by the attorneys for both sides.

(1) The foregoing complete abstract of the record entries has been made and set out in view of the contention of counsel for respondent, that the bill of exceptions is insufficient, in that it fails to show that the motion for a new trial was filed during the term at which the case was tried, and con-tinned to the next term; that leave was given plaintiff to file the bill in vacation; and that the appeal was taken during the term at which the case was determined. It is not contended that these matters were not shown by the record entries, but that they must be shown by the bill, and not having been so shown, the bill constitutes no part of the record and. there is nothing before this court for review, except “the record proper,” which it is contended under our decisions consists only of the “petition, summons, and all subsequent pleadings including the verdict and judgment.”'

If this contention could be sustained the defendant would then have to be put in the same short harness with the plaintiff, with a result anything but beneficial to him, since “the record proper” which shows a judgment in his favor, shows also a good petition for, the plaintiff and no defense thereto by demurrer, answer, or otherwise, and the judgment thereon should have been for the plaintiff instead of for the defendant who had nothing to rest a judgment upon in his favor, and the consequence would be a reversal. But the position is untenable. Surely, there can be no sound rule of law requiring a bill of exceptions to be reviewed in order to determine whether or not the matters therein contained may be reviewed. The contention seems to receive support, however, from the opinion of the majority of the court in Holt v. Simmons, 14 Mo. App. 450, in which a number of decisions of this court are cited. The f alacy of the position, however, is well exposed in the dissenting opinion of Thompson, J., in that case, who failed to find any support for it in the cases cited by the majority, and in which he well says: “The only person who can certify the rulings of the court made in the progress of the cause, so that they can be noticed in an appellate court, is the judge himself. It therefore follows that matters of exception must be certified by him in a bill of exceptions, for the reason that such matters are not already certified by him on the minutes. But matters which are certified by him on the minutes need not be again certified by him in a bill of exceptions, because this would be a wort of supererogation.” The cases •cited are some of those in which it was determined what is ■matter of exception, and what belongs to the record proper, but they are far from holding that the rulings and proceedings of the court in the case not excepted to, must be evidenced by, and certified to the appellate court in the bill of exceptions. The filing of a motion for a new trial, its continuance, the leave given to file a bill of exceptions in vacation, and the granting of the appeal, were not matters excepted to, and had no place in the bill of exceptions. They were a part of the proceedings of the court in the case, properly manifested by the record thereof, and properly certified to this court in the transcript of that record.

(2) Although the record fails to show that any answer was ever filed, it appears from the bill of exceptions that the case was tried in the court below as if there had been, and we shall so treat the case here, as we have heretofore done in other cases where the record failed to show that issue was joined by reply to answer. It was admitted on the trial, that the title to the premises was in the plaintiff, unless his title was divested by a sheriff’s deed made in pursuance of a sale, under an execution on a judgment for delinquent taxes, against him. He was a resident of the State. The petition was filed and summons issued against him as such, without any affidavit of non-residence. Upon a non est return of the summons, an order of publication was issued against him as a non-resident, and upon proof of publication of the order, the judgment was rendered. The only question in the case is whether the circuit court by such publication acquired jurisdiction to render the judgment. This question was carefully considered in the recent ease of Tooker v. Leake, 146 Mo. 419, in which it was held that service by such a publication under such circumstances conferred no jurisdiction upon the circuit court to render the judgment. That case is decisive of the question, and the judgment of the circuit court must be reversed. It is accordingly so ordered, and that the cause be remanded to the circuit court with directions to enter up judgment for plaintiff for possession of the premises and for rents and profits after due inquiry as to the value thereof.

AJI concur.