Clark v. Mason

• Decision Date: 12 October 1934
• Citation: 264 Ky. 683,95 S.W.2d 292
• Parties: CLARK v. MASON et al.
• Court: Kentucky Court of Appeals

95 S.W.2d 292

264 Ky. 683

CLARK v. MASON et al.

Court of Appeals of Kentucky

October 12, 1934

As Modified on Denial of Rehearing June 21, 1935.

Amended Petition for Rehearing Denied Oct. 11, 1935.

Appeal from Circuit Court, Graves County.

Action by W. L. Clark against Alice Mason and another. From a judgment dismissing the action, the plaintiff appeals.

Reversed with directions.

James DeBord, of Mayfield, for appellant.

Johnston & Wyman and Seth T. Boaz, all of Mayfield, for appellees.

PERRY Justice.

This is an appeal from a judgment of the Graves circuit court dismissing appellant's action against appellees in which he sought damages in the sum of $1,900 for the alleged malicious cutting and removing of timber from an acre tract of land, adjudged, in a suit brought in equity to remove cloud on title, to be the property of appellant.

In May 1930, the appellant, claiming to be the owner of a certain one-acre tract of land located in the corner of a larger tract (purchased by him in February, 1930), filed suit in equity to have his title quieted as against the claim of ownership made thereto by the appellee Mrs. Mason.

In the equity suit it was alleged that the acre in question was a part of a large tract of land which had, in 1885, been conveyed by Silas Mason to W. B. Mason, and in which deed the acre in question was excepted as having been previously conveyed by its then owner to the Salem Church, with the reservation that should the church ever abandon its use for church purposes, the same should revert to the grantor, Silas Mason.

This acre tract was by the said W. B. Mason willed to his wife, the appellee, and her children, who, after taking title to the same as devisees under the will in 1910, joined in conveying the land, with reversionary right to the acre church tract, to one J. F. Wilson, and it was, after succeeding mesne conveyances thereof, finally conveyed under like description and with like reversion on February 8, 1930, to the appellant, W. L. Clark.

Further it appears that in the year 1920, the Salem Church tore down and removed its building from this tract and abandoned its use as a church lot. By way of satisfying the reversionary rights held therein by the heirs of Silas Mason, its grantor, it conveyed the tract to the appellee Mrs. Mason. Mrs. Mason did not have the deed recorded and later lost it. On or about February 7, 1930, the church trustees executed her another deed, in lieu of the former deed which she had lost. Shortly thereafter the appellant, W. L. Clark, filed his suit in equity, seeking to have his title, as grantee of the tract embracing within its boundary this one acre church lot, quieted against the claim of ownership thereof made by the appellee Mrs. Mason.

In this suit in equity, the only relief sought was a determination of the ownership of this one-acre tract, quieting plaintiff's alleged title thereto, and the court adjudged it to W. L. Clark.

In January, 1930, Clark filed suit against the appellees, Mrs. Mason and Guy Whittemore, to recover $1,900 damages against them for the alleged willful trespass and waste committed by them upon this one-acre church tract, to which his title was adjudged quieted.

His petition alleged that Mrs. Mason, while claiming title to the one-acre tract by reason of the conveyance of it to her in February, 1930, by the church, in satisfaction of her claimed reversionary right therein, had sold the merchantable timber thereon to the said Whittemore for $16; that he had cut and removed it from off the tract; and that both the sale and the vendee's cutting and removal of this timber therefrom were willful and wanton acts of trespass and waste committed by the defendants, thereby causing and resulting in his damage to the extent of $200 as the value of the timber, $50 for erosion of the soil caused by the timber's removal, $200 for his lost time, and $250 for his worry and labor rendered necessary for protecting his interests in the land; or, for a total recovery of $700 actual and $1,200 exemplary damages, for which he prayed judgment.

Defendants filed demurrers to said petition and also their motion to transfer the action to equity and consolidate it with plaintiff's equity action, pending therein, to quiet his title, and also answered, traversing the allegations of the petition, and by a second paragraph pleaded the judgment quieting plaintiff's title, which he had secured in the equity suit, as a bar and defense to his second action seeking damages. By yet a further paragraph, Mrs. Mason pleaded that for many years she had been in possession of the said acre tract of land here involved in contest as to title and had in good faith believed herself to be the owner of said land, and that, holding both such record title and possession of it, she sold to the codefendant, Guy Whittemore, the small amount of marketable timber thereon, for which she received $16, which amount represented its fair and reasonable market value, when Whittemore, as purchaser thereof, cut and removed the $16 worth of timber therefrom. The defendants denied that either she or Whittemore had committed any acts of trespass or waste on said land or had damaged the same in any way by the sale, cutting, or removal of the timber, except to the extent of the admitted actual value of the timber so cut and removed therefrom in the sum of $16.

Further pleadings made up the issues when, after the taking of extensive proof, upon final submission of the cause for trial and judgment, the jury (under the peremptory instruction of the court) returned a verdict finding for the defendants, on which judgment was at the December term, 1932, awarded, dismissing plaintiff's petition with costs to the defendants.

Thereupon, plaintiff's motion and grounds for a new trial having been submitted and overruled, an appeal therefrom was prayed and granted and time given until the 24th day of March, 1933, term, in which to prepare and file his bill of exceptions.

It further appears by the record that plaintiff failed to file his bill of exceptions during the March, 1933, term of court, but that, without procuring any extension of time therefor (as provided by section 334, Civil Code of Practice), he did file it at the next succeeding August term. The general procedural rule of the Code as to this is that a bill of exceptions, not filed within the time thereby required, will be stricken from the record on motion. Bauer Cooperage Co. v. Ewell & Smith, 149 Ky. 838, 149 S.W. 1137. A bill of exceptions filed at a term later than the next succeeding term after judgment is rendered will not be considered by the Court of Appeals, although it is filed pursuant to an order of court (Baker v. Whittaker, 185 Ky. 492, 215 S.W. 178; Reno v. Ohio Valley Rock Asphalt Co., 255 Ky. 265, 72 S.W.2d 1036), the well-settled rule of this jurisdiction being that the requirements of the Code as to the filing of a bill of exceptions are mandatory. Dalton v. Dalton, 146 Ky. 18, 141 S.W. 371; Smalling v. Shaw, 144 Ky. 458, 139 S.W. 779.

However, while none of these steps were taken by appellant for the filing of his bill of exceptions within the time allowed him in the succeeding March, 1933, term, in keeping with the required procedure provided by the Code of Practice, and appellant could not insist that he has now presented the alleged errors of the trial court by a duly filed bill of exceptions, he yet contends that such result of his not having so filed it is here avoided by reason of the peculiar facts and circumstances surrounding his filing of his bill of exceptions at the August, 1933, term which brings his delayed filing within an exception to the generally required practice and entitles him to have the same treated and considered by us as having been duly and properly filed and as now a part of the record.

These special facts which he urges to excuse his tardy filing of his bill of exceptions on August 7, 1933, rather than on the day fixed in the prior March, 1933, term next succeeding the December, 1932, term, in which the judgment was granted and such time fixed by the court for its filing, are that he could not file his bill of exceptions, as provided for in such judgment, for the reason that the said judgment, although given and ordered entered by the special trial judge at the December, 1932, term of the court, was at the time given for filing itself effectual as a valid judgment for the reason that same had never then been signed by the judge so as to make it effective nor was it signed by him until the following July 14, 1933. This judgment, given and ordered entered by the special judge when trying this case in December, 1932, being ineffectual until signed by the judge, did (it is contended) not support the granted appeal therefrom or support appellant's filing of a schedule within sixty days thereafter, nor was it, by reason of such defect, sufficient to authorize appellant's filing his bill of exceptions within the time granted therefor or at all until same was properly validated by the judge's signing it.

While the general rule is that a judgment is not required to be signed in order to be effective, the rule of this jurisdiction, however, is that it is deemed indispensable to the validity of a judgment that it be signed by the presiding judge or justice of the court. To such effect, see Farris v. Matthews, 149 Ky. 455, 149 S.W. 896, 898, where the rule is so stated as follows: "It is well settled that it is essential to the validity of a judgment that it shall be entered upon the order book of the court, and signed by a judge, and that an unsigned judgment is no judgment at all." (Italics ours.)

To like effect, see 15 R.C.L. § 21, page 585; Anderson's Committee v. Anderson...