Cook v. Penrod

• Decision Date: 21 February 1905
• Citation: 111 Mo. App. 128,85 S.W. 676
• Parties: COOK et al. v. PENROD.
• Court: Missouri Court of Appeals

85 S.W. 676

111 Mo. App. 128

COOK et al. v. PENROD.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

COURT RECORDS — ATTACK — ADJOURNMENT — LESSEES — NOTICE TO QUIT — DISCLAIMING TITLE IN LESSOR.

1. The records and proceedings of a court of record are not open to attack by oral testimony.

2. An order of adjournment shown by the records to have been made at a time to which the court was adjourned, and when the judge was not present, and therefore not authorized by Rev. St. 1899, § 1604, impeaches itself, and is void.

3. Where the husband of the owner of land, as her agent, leased land, and afterwards agreed to convey his interest therein to the lessee, the lessee, by thereafter asserting his right to hold under his contract of purchase, disclaimed title in his lessor, and therefore was not entitled to notice to quit before suit for possession.

Appeal from Circuit Court, Stoddard County; Robt. L. Wilson, Special Judge.

Action by Laura Cook and another against W. R. Penrod. Judgment for defendant. Plaintiffs appeal. Reversed.

The suit was to recover possession of premises described in the complaint, which were alleged to be unlawfully detained by the defendant. It was commenced before S. P. Jeffers, a justice of the peace of Stoddard county. On application of defendant the venue was changed to W. F. Bolen, another justice, who, on January 26, 1904, gave judgment for the plaintiffs. On February 3, 1904, defendant filed his affidavit for an appeal before the justice. The appeal was granted, and on February 8, 1904, the transcript was filed in the office of the clerk of the Stoddard circuit court. At the following March term, to wit, on January 2, 1904, Hon. J. L. Fort, judge of the court, disqualified himself to preside at the trial of the cause, and Hon. Robt. L. Wilson was agreed upon by the parties as special judge to hear the cause. He duly qualified as such special judge and presided at the trial. On the same day the following motions were filed:

"Now comes William R. Penrod, movant, ex parte, and moves this court to vacate, annul, and hold for naught a certain order of adjournment entered and recorded by its clerk on or about January 23, 1904, appointing another adjourned term of this court for February 6, 1904, hereinafter set forth, and for reasons for this motion respectfully states as follows, to wit: That on or about January 23, 1904, irregularly, improvidently, erroneously, illegally, and without authority so to do, Thos. H. Ezzell, clerk of this court, entered an order upon the minute book of this court, which order is in words and figures as follows, to wit: `State of Missouri, County of Stoddard — ss.: In the circuit court September term, 1903. Now, on this January 23, 1904, the court met pursuant to an order as follows, to wit, pursuant to an order of the judge of the circuit court, directed to the sheriff, that the said judge was not able to attend the adjourned term of this court on the 23d day of January, 1904, the said sheriff did, on the 23d day of January, by proclamation at the courthouse door, and pursuant to said order of said judge, adjourn this court until the 6th day of February, 1904.' That January 26, 1904, in an action of unlawful detainer to recover possession of the east ½ of the northwest ¼ of section 21, township 25, range 12 east, in Stoddard county Missouri, before William F. Bolen, a justice of the peace of Elk township, said county, Laura Cook and James M. Cook, as plaintiffs, recovered judgment against William R. Penrod, as defendant, for restitution of said premises, damages, etc. That February 2, 1904, William R. Penrod, your movant, duly appealed said action into this court, where it is still pending and undetermined. That March 7, 1904, said plaintiffs filed their motion into this court to dismiss said appeal because it was not perfected within six days of the date of the rendition of said judgment, and alleging that February 2, 1904, when said appeal was perfected, as also January 26, 1904, the date of said judgment, this court was in session of its September, 1903, term; and for these reasons it has become material to this movant to show unto this court that its order of January 23, 1904, above set forth, was void or voidable, ineffective to continue said September 1903, term, from January 23, 1904, to February 6, 1904, and because of which invalidity this court was, by operation of law, January 25, 1904, duly adjourned to court in course beginning March 7, 1904, by reason of which this court was not in term, but in vacation, January 26, 1904, the date of which said judgment was rendered as aforesaid. That said motion to dismiss said appeal is still pending and undetermined in this court. That it is not true that said clerk entered said order of adjournment in the records of this court January 23, 1904, as stated therein, the truth being that he entered it of record four days thereafter, or January 27, 1904. That it is not true that George A. Crain, then and now sheriff of said county, or any person pretending to act for him as such sheriff, or otherwise, January 23, 1904, or at any other time in January, 1904, at the courthouse door, or other place, made proclamation or other announcement that by order of Hon. J. L. Fort, presiding judge of this court, or other authority, by letter or otherwise, adjourned this court from January 23, 1904, to February 6, 1904, or that January 23, 1904, this court was in any manner or by any means adjourned to February 6, 1904. That movant, until March 12, 1904, had no knowledge of the existence of said order of adjournment. That had said sheriff, January 23, 1904, at said courthouse door, proclaimed an adjournment of this court from January 23, 1904, to February 6, 1904, movant would have known of the fact, and would have perfected his appeal within six days, provided by law under such circumstances. That in point of fact after November 28, 1903, down to March 7, 1904, said presiding judge has held no court in said county, nor has any business been transacted in this court. That movant has a just and meritorious defense to said action of unlawful detainer, which cannot be made available to him unless said order of January 23, 1904, be vacated. That in fact this was in vacation from January 25, 1904, to March 7, 1904. That movant has filed with and attached to this motion the following instruments of writing, to wit, a certified copy of all adjournments of this court from September 14, 1903, to March 7, 1904, marked `Exhibit B,' and the affidavit in this behalf of Thomas Ezzell, clerk of this court, marked `Exhibit B,' and the affidavit of George A. Crain, sheriff of said county, marked `Exhibit C,' and all of which are hereby referred to as parts of this motion and in support thereof; and that movant is informed and believes it to be true that none of the officers who participated in the making of said order of January 23, 1904, acted from any improper or intentional wrong motive, that such order was legal, and for public good. Wherefore movant prays this court to vacate said order of January 23, 1904, adjourning or attempting to adjourn this court to February 6, 1904; and for all other further and proper relief in premises."

"Now come plaintiffs in the above-entitled cause, being now the respondents herein, and move the court to dismiss the defendant's appeal for the following reasons: Because said cause being a cause of action originating before a justice of the peace, and having been tried under the unlawful detainer act before the justice of the peace from whom the appeal was taken, and judgment rendered therein during the term of this court, as shown by the transcript filed in said cause and by records of this court, and the appeal taken by the defendant, not having been taken and the transcript returned to this court within six days after date of the judgment appealed from, this court acquired and has no jurisdiction in said cause of action."

In support of the motion to vacate record entries of the court, Penrod read the following affidavits:

"This day personally appears before me George A. Crain, who, being by me first duly sworn according to law, states as follows, to wit: `I am now, and have been for several years last past, sheriff of Stoddard county, Missouri. I did not, nor any person for me, January 23, 1904, at the courthouse door of said county, nor at any other place, make proclamation that the circuit court of said county was adjourned from January 23, 1904, to February 6, 1904, nor did any person request me so to do.' George A. Crain, Sheriff.

"Subscribed and sworn to before me April...