Burnett v. McCluey

• Decision Date: 31 October 1883
• Citation: 78 Mo. 676
• Parties: BURNETT v. MCCLUEY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 676

BURNETT

v.MCCLUEY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Dade Circuit Court.--HON. J. D. PARKINSON, Judge.

REVERSED.

The testimony of Nathaniel Bray on behalf of plaintiff was as follows: I did know of the suit of Bank against Ferguson and Stephens. I was employed by Stephens to defend the case. My impression is I examined the papers before the court convened; I know I did early in the return term of the suit. McAfee and Phelps and I examined the papers at that time; they represented Ferguson and Stephens. I found that Stephens' property was not attached and no service on him, and I told him (Stephens) to keep out of Dade county. McAfee and Phelps, or one of them, and I talked about it, that there was no affidavit and bond; then I told Estes he had better dismiss my clients, but he went on and took judgment against both, and when the record was read next morning I found a regular attachment judgment entered up. My client was not attached, but the judgment was against both Ferguson and Stephens. I then examined the record and knew all about it, that is the entry read the next morning. I objected to the entry because no attachment, nor service, on my client. Phelps and McAfee objected to judgment against their client because no affidavit or bond, and Ferguson not personally served. Perhaps McAfee filed a motion to that effect, I can't say; I appeared only as a friend of the court. The next judgment was a general one, and was entered on pages 579 and 580. Joseph Estes was plaintiff's attorney; he left here in 1868; I next learned where he was of his brother who was here; I have not seen him since 1868. When here he took a good deal of tea, at times very brilliant and at others very morose; he went away very strangely; he transacted his business here very loosely. I have corresponded with him since he left; I have had a number of talks with defendant about the purchase of this land; the Fergusons and myself owned the land together. There was an understanding between the Fergusons and myself not to sell unless we were both agreed. The Fergusons lived in Arkansas and defendant had been there to see them about buying their land. He told me that he could not trade for the land himself, but that he had got Burnett to trade them a piece of land Burnett had in Arkansas, and McCluey was to pay $800 or $900 for his lands in, say six months, and he, McCluey, wanted to buy my interest in the lands.

On cross-examination he further testified; I informed defendant say one and a half or two years ago, of Estes' whereabouts. It was before Jo Estes' deposition was taken the first time in this case. After Burnett bought out the heirs, he, Burnett, denied my title to one heir's share, and hence, I didn't own half. We, McCluey and I, were wrangling with Burnett about his title, and I think it was after this suit was commenced I did secure Estes' first deposition in this case, which deposition I understand to have been suppressed. That deposition was to prove from Estes whether an attachment, affidavit and bond was filed in the suit of the Bank against Ferguson and Stephens. I got the deposition and paid my money for it, $25.00, and have not got it back.

Q. Did you not write a letter to Estes inquiring of him if he did not file affidavit and bond for an attachment in the Bank suit against Ferguson and Stephens, and in that letter did you not use the following words, to-wit: It is a purely jurisdictional question? Ans. I may have used those words; I would not say that I did not. A letter being handed to witness he further testified as follows, to-wit: I wrote this letter; I might have used the words, “It is a purely jurisdictional question.” I am not sure but I did act in a double capacity; perhaps I agreed to assist McCluey against Burnett. The time McCluey came to me at Carthage was the day I entered into a written contract as to his purchase of my Ferguson lands. The controversy between McCluey and me against Burnett, was not long after McCluey's contract with me. I counseled McCluey to hold possession of the land against Burnett. When Burnett conceded I owned one half I tried to get them to settle it and divide the lands between them.

Redirect: I don't know whether Estes, when he took the judgment, had the affidavit or bond in his hands; there were then no such papers in the roll; I did not see Estes have them; I could not say anything about that.

C. B. McAfee testified: I knew of the Bank case against Ferguson and Stephens; I examined the papers before any judgment was taken; I didn't find any affidavit for attachment, but found affidavit of non-residence and affidavit to petition, such as was used in order of publication cases in those days; also a writ of attachment was there, when a judgment was taken in the case; I don't recollect the reading of the record, but when judgment was entered at reading, or soon after, I noticed it was a special judgment against Ferguson's land. I called the judge's attention to it, and said I had been employed by Ferguson, and having made the examination, I had made no appearance to the suit; and asked if I might, as a friend of the court, appear for the purpose of moving to set aside the judgment. He readily granted it, and I prepared such a motion, I think, to quash the writ of attachment, but of that I am not certain. When I had got so far along and motion prepared and handed to the judge, I understood the judgment was set aside. I handed the motion to the clerk. Judge Price told Estes to prepare such a judgment as he wanted and hand it to Capt. McAfee, and he did so and I was satisfied. I have no recollection of examining the record afterward. I have no recollection of ever seeing the judgment on record, or ever seeing the record afterward. The judgment Estes prepared was a general judgment on an order of publication and no attachment. My reason for changing the judgment was that there was no affidavit and bond, and I presume I put that in my motion, and I supposed the judgment was set aside, and I didn't pay so much attention as I might, because it was so easy a going thing. I had the roll. I can't tell whether Estes had any affidavit or bond. I don't think he had, because that was the very question.

Q. In what order and condition were the court papers kept in the office of the clerk of this court in 1865 and thereabouts? Ans. In a very loose and careless order.

The deposition of Joseph Estes, on behalf of defendant, was as follows: I was the attorney of the Merchant's Bank of St. Louis, for Dade county, and as such I brought an attachment suit for said bank against John N. Ferguson, Marshal G. Stephens and others, on a bill of exchange for $400, in the circuit court of Dade county, Missouri, returnable to the fall term, 1865. I drew and filed the petition, bond and affidavit in said suit. These papers were drawn in the usual statutory form. I made the affidavit for said bank in said suit, which affidavit, among other things, charged the defendants, Ferguson and Stephens, with having absented themselves from their usual places of abode, so that the ordinary service of law could not be had upon them--or words to that effect copied from the statutory form. I drew and signed said affidavit, and was sworn to the same by the clerk of the circuit court of Dade county. The bond was signed by myself as attorney for the bank and by R. S. Jacobs of Greenfield, Dade county, and was approved by said clerk. When I had filed the petition, bond and affidavit the clerk of the circuit court of Dade county issued a writ of attachment against said defendants, which writ was directed to the sheriff of Dade county, and was by him levied upon the real estate of Ferguson, situate in said county. There was no defense made to the suit; and as attorney for plaintiff, I asked and obtained a judgment in attachment against the defendant in said suit. At the succeeding term of the court, after the judgment was rendered, the said real estate of said Ferguson was sold by the sheriff of Dade county to satisfy said judgment, and Robert McCluey became the purchaser.

Q. Who was clerk of the circuit court of Dade county when you brought this suit? A. Benjamin Appleby was clerk, and Nelson McDowell, deputy.

Q. Were the petition, bond and affidavit fastened together when you filed them? A. I think not. It was my custom to draw my attachment suits on separate pieces of paper and hand them to the clerk to be fastened together.

Q. Have you ever seen the papers since you filed them? A. Only once that I remember; I had the petition, bond, affidavit and order of publication m my hands at the time I took the judgment; I then returned them to the clerk, and have not seen them since.

Q. Did you ever bring any other suits against the defendants, Ferguson and Stephens? A. I did not.

Q. Did you ever ask the court to set aside the judgment in said suit and grant the plaintiff a general judgment. A. I did not. I demanded and obtained a judgment in attachment, and I depended in this case (as in all others) on the clerk entering up the judgment in proper form. I never knew until quite recently--that is to say since the year 1877--that any other entry but the original entry of a judgment in attachment had been made in this suit.

Q. Did the Bank instruct you to bring suit by attachment? A. The Bank ordered me to bring all her suits by attachment, where defendants were non-residents.

N. Gibbs for appellant.

J. C. Cravens for respondent.

HOUGH, C. J.

This is an action of ejectment for an undivided half of the south half of the northwest quarter and the north half of the southwest quarter, and the southwest quarter of the southwest quarter of section 6, township 32, range 28, and the east half of the southeast quarter, and the south half of the northeast quarter of section 1, township 32, range 29, in the county of Dade. John N. Ferguson is the common source of title. Plaintiff claims title under a deed...