123 Mo. 308 | Mo. | 1894
— This is an action by plaintiff, as the widow of Henry C. Young, deceased, for the assignment of dower in the undivided half of a lot in the city of Springfield, Missouri. This is a second appeal by defendant. The judgment upon which the first appeal was taken was affirmed in all respects, except as to the time at which the annual payment of $200, as yearly value of dower, should be made. As to the time of such payment this court ordered a modification of the judgment and to the end that it might be made by the circuit court the judgment was reversed and the cause remanded with directions to the said circuit court to make the modification! See opinion, 115 Mo. 235, paragraph 8.
It appears, from the record on this appeal, that the mandate of this court was filed in the circuit court of Green county at the May term thereof, and on the first day of May, 1893, and without other notice to defendant than the filing implied, on said day, on motion of plaintiff, the cause was placed upon the docket and a judgment was thereupon entered in accordance with said mandate.
In support of this motion defendant filed >an affidavit setting out his alleged defense as follows: “On the thirtieth day of September, 1892, and after the first trial of the above cause in this court, and while the same was pending in the supreme court by virtue of a deed duly executed, acknowledged and to said defendant delivered by the sheriff of the county of Greene, in the state of Missouri; said defendant acquired and.now holds all the right, title and interest, which said plaintiff herein had in or to the land in plaintiff’s petition mentioned as dower or otherwise, and that said deed was made by said sheriff under an execution sale on three executions against said plaintiff, one in’ favor of Heer Dry Goods Company,' one in favor of one Cummings, and one in favor of one Dabbs; that defendant desires to set up the foregoing facts in defense of this suit; the defendant first learned of the said judgment in this suit on Saturday, May 13, 1893.”
This motion was afterwards heard, and on the hearing, evidence in support of the facts alleged in the affidavit, was introduced. This motion was overruled and defendant again appealed.
The former judgment of this court was in affirmance of that rendered by the circuit court, and from which the appeal was taken, except as to the date at which plaintiff should be paid the adjudged yearly value of her dower. This error, the circuit court was directed, by the judgment of this court, to correct by making a
A judgment which merely reverses that of the court of original jurisdiction, and remands the cause for further proceedings,- is not a final'judgment. But one of reversal is final “when it also enters or directs the entry of a judgment which disposes of the case.” Smith v. Adams, 130 U. S. 167.
This court has the power, when sufficient data is before it, either to enter the proper judgment, or remand the case to the court of original jurisdiction, with directions to that court to make the proper entry. In either case the judgment is that of this court, and is final and conclusive of all matters involved in the litigation. The inferior court only carries into execution the judgment which has been rendered by this court. “Nothing is left to the judicial discretion of the court below.” Mower v. Fletcher, 114 U. S. 127; Black on Judgments, sec. 34.
Rights of the parties, which may have accrued subsequent'to the rendition of the original judgment, and which were notin issue in the proceedings in which it was rendered, would not be adjudicated therein, but the circuit court has no power to reverse, open or interfere with the judgment of this court, in order to settle such rights. They must be determined by a subsequent suit upon a different cause of action.
Defendant was not harmed by a failure to give him notice that the judgment of this court would be entered. Judgment affirmed.
