Ross v. Ross

Decision Date31 October 1884
PartiesROSS et al. v. ROSS, Appellant
CourtMissouri Supreme Court

Appeal from Cape Girardeau Circuit Court.--HON. J. D. FOSTER, Judge.

REVERSED.

R. B. Oliver for appellant.

(1) A judgment rendered on a motion to quash an execution is a final one, and an appeal will lie from it. (2) The judgment was not responsive to the issues made and was void. Ross v. Ross, 81 Mo. 84. (3) The action of the court making the amendment to the judgment was wrong. Freeman on Execution, sec. 75. (4) The motion to quash should have been sustained. Freeman on Executions, secs. 20, 73 and 75; Freeman on Judgments, sec. 117.

Linus Sanford for respondent.

(1) In the first judgment the court had jurisdiction of both the person of the defendant, and of the subject matter of the cause of action. (2) In the amended judgment the court says in its finding, the parties by their attorneys appear as Wm. L. Unger, etc., is conclusive as to the jurisdiction of the person. Rumfelt v. O'Brien, 57 Mo. 571; Freeman v. Thompson, 53 Mo. 183; Baker v. Stonebraker, 34 Mo. 172. (3) The appellant cannot in his motion to quash the execution attack the judgment for any irregularity so long as the same is not void. If there has simply been error committed his remedy is by appeal or writ of error. Marsh v. Bast, 41 Mo. 293; Bracket v. Bracket, 53 Mo. 265.

HENRY, J.

At the January term, 1881, of the circuit court of Cape Girardeau county, a judgment was obtained by plaintiffs against defendant in a suit instituted against defendant to set aside a conveyance of a tract of land in range 12 in that county, on the grounds of fraud perpetrated by the grantee, the defendant, upon the grantor, and mental incapacity of the grantor, who is the mother of the plaintiffs and defendant. After hearing the evidence in the cause the court permitted an amendment to plaintiffs' petition alleging that the deed executed by the grantor was intended to be a mortgage or security for debts already paid for the grantor by the defendant. The court found for plaintiffs, not that the grantor had not capacity to make a conveyance, or that it was procured by fraud, but that the deed was executed as a security for said sums advanced by defendant and ordered a sale of said land, and that out of the proceeds should be first paid the costs of sale, and next said sum of money advanced by defendant, with six per cent. interest, and that the balance should be divided equally between the parties entitled thereto.

On appeal to this court the judgment was reversed and the cause remanded, but pending the appeal in this court it was discovered by plaintiffs in that suit that the land was misdescribed, both in the petition and the judgment, and after a sale under said judgment at a subsequent term of said court they filed their motion to correct the judgment and petition by inserting “13” where “12” occurred in describing the land. On the hearing of said motion the court allowed the corrections, and another order was made for the sale of the land on the 13th of January, 1882. On the 10th of January, at the January term of said court defendant filed his motion to set aside said order of sale, alleging the facts hereinbefore stated as the grounds for said motion. The court overruled this motion and a sale was made under the order. Subsequently in March, 1884, the Supreme Court reversed the judgment and remanded the cause. From the judgment of the circuit court overruling defendant's motion to set aside the order of sale he has appealed to this court.

“As a general rule no final judgment can be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors.” Freeman on Judgments (3rd...

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  • Kansas City v. Jones Store Co.
    • United States
    • Missouri Supreme Court
    • June 3, 1930
    ...which it should have made during the trial of the cause. People v. Scott, 22 N.W. (Mich.) 274; Burnside v. Wand, 170 Mo. 531; Ross v. Ross, 83 Mo. 100; Fetters v. Baird, 72 Mo. 389; Hyde v. Curling and Robertson, 10 Mo. 360; Evans v. Fisher, 26 Mo. App. 541. (4) Since the court was without ......
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