Atkison v. Dixon

• Decision Date: 20 December 1888
• Docket Number: 4207
• Parties: [No. 4207.] John Atkison v. Dixon et al.; R. A. Atkison, Intervenor, Appellant
• Court: Missouri Supreme Court

10 S.W. 160

96 Mo. 577 v. Dixon et al.; R. A. Atkison, Intervenor, Appellant

[No. 4207.] John Atkison

No. 4207

Supreme Court of Missouri

December 20, 1888

Appeal from Cass Circuit Court. -- Hon. Noah M. Givan, Judge.

Affirmed.

E. J Smith for R. A. Atkison, appellant.

The circuit court should have sustained the motion of R. A Atkison for judgment of restoration at the July term, 1886 and thus given him such judgment without a trial at that time. This court by its opinion and judgment herein at April term, 1886 (89 Mo. 464), directed such judgment without a further trial. Atkison v. Dixon, 89 Mo. 464; Atkison v. Dixon, 70 Mo. 381; State ex rel. v. Givan, 75 Mo. 516; Chouteau v. Allen, 70 Mo. 290, and 74 Mo. 56; Conner v. Pope, 18 Mo.App. 86, and 23 Mo.App. 344; Chickeriny v. Failes, 29 Ill. 303; Duffit v. Crosier, 17 C. L. J. 233.

R. O. Boggess, Railey & Burney and T. J. Smith for respondents.

This court in reversing the judgment of Cass circuit court (89 Mo. 464) merely directed the lower court to ascertain and determine whether R. A. Atkison was in possession of the lot in controversy at the time he was evicted, claiming possession thereof, under his quit-claim deed from his father; or under his tax deeds offered in evidence; and, if under the latter, to restore him to possession. If not in possession under his tax deeds, then of course he was not to be restored to possession.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This case is here on the appeal of R. A. Atkison from a judgment of the Cass county circuit court in favor of defendant Dixon.

The record discloses the following facts, viz: That an execution issued from the Cass circuit court to restore the Dixons to the possession of lot 4, block 11, in the town of Butler, Bates county, said possession having been lost by them in virtue of a judgment in favor of John Atkison afterwards reversed by this court. The sheriff, in his return to this writ, certifies that he executed it on the thirty-first day of July, 1882, by reading the same to and in the hearing of H. H. Nichols, J. H. DeSpain, Paul Dickerson, Richard Hurt and Poarch, who were found in possession of said property; and also by delivering possession thereof to A. Henry as agent and attorney of Elizabeth and Louis Dixon, and the writ was further executed by reading the same to John Atkison on the first day of August, 1882, said Atkison not being found in possession.

After said return was made R. A. Atkison, on the fifteenth of August, 1882, filed in the Cass county circuit court an intervening petition setting up that the persons ousted of the possession of said lots by the sheriff in executing said writs were his tenants, and that he, R. A. Atkison, was through them in the actual possession of said lot, claiming to own the same by paramount title conferred upon him by certain tax deeds, and by the purchase of the houses thereon. By the petition, the court is asked to quash and vacate the return to the writ and restore him to the possession of the premises.

To this petition, the Dixons filed an answer denying the allegations of the petition, and setting up that after John Atkison, the father of R. A. Atkison, took possession of the lot in dispute under his judgment obtained in 1876 against Louis Dixon, to defeat and prevent the possession from being restored to defendants, the Dixons, transferred the possession of the same to his son, the said R. A., and made a conveyance by deed of the same to him.

It may be stated here, that on motion the court appointed a receiver to collect the rents, and hold the same subject to the order of the court.

On the trial of the issues presented by the intervening petition the court rendered judgment against said Atkison for the value of the ground rent and refused to vacate the sheriff's return. From this judgment, R. A. Atkison appealed to this court which reversed the judgment and remanded the cause, and the opinion of the court is reported in 89 Mo. 464. When the mandate of this court was sent down, the circuit court retried the issue presented by the intervening petition and answer and rendered the following judgment: "Now at this day comes R. A. Atkison, intervenor herein, in his own proper person as well as by his attorney, and come also Lewis Dixon and Elizabeth Dixon, the above-named defendants, by their attorneys, and the said intervenor and the said defendants now waive the right of trial by jury, and submit to the court for trial, hearing and determination the issue between them herein; and the court, having heard and duly considered the evidence...