Collier v. Catherine Lead Co.

• Decision Date: 24 December 1907
• Citation: 106 S.W. 971,208 Mo. 246
• Parties: COLLIER et al. v. CATHERINE LEAD CO. et al.
• Court: Missouri Supreme Court

106 S.W. 971

208 Mo. 246

COLLIER et al. v. CATHERINE LEAD CO. et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1907.

1. APPEAL — RESERVATION OF OBJECTIONS IN LOWER COURT — MOTIONS FOR NEW TRIAL — SAVING EXCEPTIONS.

A motion for a new trial on the grounds that the finding is unsupported by the evidence, and that the court erred in admitting, over plaintiffs' objection, illegal, incompetent, and improper evidence, is sufficient to save their exceptions; a general assignment on such a motion being sufficient where proper objections were made and exceptions saved.

2. SAME — BRIEFS — SUFFICIENCY — ASSIGNMENT OF ERRORS.

Supreme Court Rule 15 (73 S. W. vi), requiring appellant's brief to distinctly and separately allege the errors relied upon, is sufficiently complied with where the errors are pointed out under the head "Points and Authorities."

3. SAME — ABSTRACT OF RECORD — SUFFICIENCY — TRIAL BY SUBSTITUTE JUDGE.

Though an abstract of record, reciting that the case was "tried before D., judge of the Fifteenth district, A., judge of the trial district, being disqualified from sitting," failed to show any record entry showing the substitute judge's authority to act required by Rev. St. 1899, §§ 819, 1685 [Ann. St. 1906, pp. 791, 1222], the defect was cured by an excerpt from the record embodied in the abstract showing that a bill of exceptions was signed by "D., judge of the Fifteenth judicial circuit, the trial judge in this case," since it thus appears he acted as trial judge, and, the record disclosing no objection to his doing so, it must be presumed he qualified.

4. SAME — EQUITY APPEALS — EVIDENCE.

On equity appeals the abstract of the record should contain all the evidence.

5. PROCESS — SERVICE — SUFFICIENCY — STATUTORY PROVISIONS.

Rev. St. 1879, § 3489, as amended by Sess. Laws 1881, p. 174 (Rev. St. 1899, § 570 [Ann. St. 1906, p. 597]), providing for the service of summons on several defendants, by delivering to the one first summoned a copy of the petition and writ, and to those subsequently served a copy of the writ, etc., does not require a copy of the petition to be delivered to the first defendant served in each county, where the defendants are in several counties.

6. EXCEPTIONS, BILL OF — INCORPORATION OF DOCUMENTS — SUFFICIENCY.

Under Sess. Laws 1903, p. 105 [Ann. St. 1906, § 866], where a bill of exceptions describes documents offered in evidence and in the clerk's possession, and directs him to copy them, they become as much a part of the bill as if fully copied therein.

7. PROCESS — SERVICE — COLLATERAL ATTACK — BURDEN OF PROOF.

Under Rev. St. 1879, § 3489, as amended by Sess. Laws 1881, p. 174 (Rev. St. 1899, § 570 [Ann. St. 1906, p. 597]), providing for the service of summons on several defendants by delivering to the one first summoned a copy of the petition and the writ, and to those subsequently served a copy of the writ, where plaintiffs attacked the validity of the service of summons in a former suit on the ground that no copy of the petition was served upon one of the several defendants, the burden was upon them to prove such defendant was the first one served.

8. COURTS — RECORDS — NUNC PRO TUNC ENTRIES — NOTICE.

Where defendants have been properly summoned in a partition suit, it is not necessary to notify them of an application for nunc pro tunc record entries after final judgment; such entries being made only from written memoranda upon the records or files in the case.

9. SAME.

Where a report of sale in a partition action was filed, and the cause continued for distribution, the action was still pending, and the defendants, having been properly summoned and being before the court for all purposes until final judgment, were not entitled to notice of an application for nunc pro tunc record entries.

10. PARTITION — ORDER OF SALE — NECESSITY FOR RECORDING.

A certified copy of an order of sale in a partition suit is not invalid as the sheriff's authority to sell the land, making the sale void, because the order has not been recorded.

11. JUDGMENT — COLLATERAL ATTACK — NUNC PRO TUNC ENTRIES.

Where the court had jurisdiction of the subject-matter and of the parties, a judgment, reciting that nunc pro tunc entries were made upon proof from the minutes and records of the court and proper record evidence, may not be attacked collaterally on the ground that there was no evidence to support it.

12. PARTITION — FINAL JUDGMENT — WHAT IS.

A judgment of partition and order of sale is but an interlocutory judgment; the order of distribution being the final judgment.

13. JUDGMENT — COLLATERAL ATTACK — NUNC PRO TUNC ENTRIES — PARTITION.

While a partition suit is pending it is proper for the court to amend its records and judgments to conform to the facts, and when it does so, and no appeal is taken therefrom, the judgment is not subject to collateral attack.

Appeal from Circuit Court, Madison County; Samuel Davis, Special Judge.

Action by George B. Collier and others against the Catherine Lead Company and another. From a judgment for defendants, plaintiffs appeal, and defendants move to dismiss the appeal. Motion overruled, and judgment affirmed.

John C. Brown and John H. Chitwood, for appellants. Edward D'Arcy and W. T. Hughes, for respondents.

GRAVES, J.

Action in the circuit court of Madison county. The first count of the petition filed by the plaintiffs is an ordinary action, to ascertain, define, and quiet title under section 650, Rev. St. 1899 [Ann. St. 1906, p. 667]. By the second count of the petition plaintiffs aver that they own the land therein described, and described in the first count; that for farming purposes the land is not worth more than $1,000, but that it is underlaid with different minerals of the aggregate value of $1,000,000; that defendants are mining and removing the said minerals and converting the same to their own use, and threaten to continue so to do; that by reason thereof plaintiffs' land will be rendered valueless; that said trespasses will necessitate a multiplicity of suits to collect damages; that said trespasses, if continued, will render ineffectual the suit to quiet title, as stated in the first count, and will cause plaintiffs irreparable injury. The prayer was for an injunction or restraining order as to defendants' acts in removing and mining ore from the land in question.

The answer in the first count admits the possession of the land in question to be in defendants, admits that for grazing and agricultural purposes it is of but little value, not exceeding $1,000, and denies each and every allegation of the petition. By the second count the 10-year statute to limitations is pleaded. By the third count it is pleaded that defendants obtained possession in good faith in 1891, from the owner of the record title, who was in the open, notorious, and peaceable possession thereof, and that without any notice of the pretended claim of the plaintiffs, and relying upon their said title, and in absence of any notice of the claim of plaintiffs, have made valuable improvements thereon to the extent of $150,000, which said improvements were made with the knowledge of plaintiffs and all others in the vicinity, and that plaintiffs by their silence acquiesced therein, and are and should be now estopped from claiming any title or interest in the said lands. By a fourth clause in the answer it is pleaded that the alleged claim of plaintiff Chitwood came to him by a deed for an inconsiderable consideration from one Samuel E. Hoffman; that one Firmin Desloge, one of the then owners of said land, in July, 1887, instituted suit for the partition of said lands against all of the parties having an interest therein, including the said Hoffman; that said lands were duly partitioned and sold by the sheriff under a decree in said cause; that one Frank Schulte, relying upon said proceedings and upon the sheriff's deed and upon the knowlege of Hoffman in regard thereto, purchased said lands at such partition sale, and received and accepted the sheriff's deed thereto, and immediately after such sale, September 25, 1888, went into the open, exclusive, and notorious possession of said land; that such possession continued in such Schulte and his grantees and successors to the time of the suit, the last of such successors to the Schulte interest and title being the defendants; that all these things were of common knowledge; that neither said Hoffman nor any of the plaintiffs herein made any claim to said land for 16 years; that plaintiff, Chitwood, had knowledge of all these facts when he purchased of Hoffman for the trivial sum of $50, well knowing that Hoffman had no claim to said land and made no claim to said land; and that the deed from Hoffman to Chitwood is champertous and void. The prayer is that such deed be declared void; that the title to said land in dispute be declared to be in the defendants, and for such other and proper equitable relief.

The reply admits that Hoffman owned an interest in the land in July, 1887, avers his sale thereof to Chitwood for a valuable consideration, and then denies all other new matter pleaded in the answer. Trial was had before Hon. Samuel Davis, as special judge, and judgment for defendants, from which the plaintiffs appeal.

Defendants have filed a motion to dismiss this appeal, which motion was by this court taken with the case, and is therefore for disposition before we reach the merits of this matter. Counsel for defendants, in their brief on the motion to dismiss appeal, summarize their reason thus: "(1) For failure of appellants to save their exceptions by a proper motion for a new trial in the trial court. (2) For failure of appellants to save their exceptions by an assignment of errors in this court. (3) For failure of appellants' abstract to show that the proceedings in the court below were coram judice. (4) For failure of appellants' abstract to set forth so much of the record as is...