Critchfield v. Linville

• Decision Date: 22 June 1897
• Citation: 41 S.W. 786,140 Mo. 191
• Parties: Critchfield et al., Appellants, v. Linville et al
• Court: Missouri Supreme Court

41 S.W. 786

140 Mo. 191

Critchfield et al., Appellants, v. Linville et al

Supreme Court of Missouri, Second Division

June 22, 1897

Appeal from Nodaway Circuit Court. -- Hon. Cyrus A. Anthony, Judge.

Affirmed.

E. A Vinsonhaler for appellants.

(1) The court in its last judgment having found the facts and incorporated same in the judgment this court will review same and pass upon their sufficiency to sustain its judgment although no motion for a new trial was filed. Land Company v. Bretz, 125 Mo. 418. (2) As the judgment last entered does not set aside the first judgment, we contend that upon this record the judgment first entered for plaintiffs is the only valid judgment, and the last one should be reversed. Murphy v. DeFrance, 23 Mo.App 337. (3) As the grantee in the deed from Greenelsh to the Grange was not incorporated such deed was void. Douthitt v. Stinson, 63 Mo. 268. The legal title, therefore, as found by the trial court, is in plaintiffs; but what basis is there for giving all these improvements to the defendants? While defendant Linville was in 1881 one of three trustees for the Grange, yet this does not give him the property.

OPINION

Sherwood, J.

This cause is here on what is usually termed a short transcript, that is a "certified copy of the record entry of the judgment, . . . . together with the order granting the appeal." R. S. 1889, sec. 2253.

The claim is made here that two judgments were entered in this cause in the lower court at the same term. A copy of the latter judgment has been certified to this court. The effect of the entry of this latter judgment was of course to set aside, vacate and abrogate the former one, though certainly this result should have been announced by a direct entry making such announcement.

The record recites that "plaintiffs by counsel except to setting aside judgment and to the modification of judgment heretofore entered." But this entry on the record is no evidence whatever of the fact. The only way to preserve anything of that sort is to place and preserve it in a bill of exceptions, the only repository for things of that sort. Nichols v. Stevens, 123 Mo. loc. cit. 119; State v. Taylor, 134 Mo. 109, 35 S.W. 92. Therefore in absence of any showing in the bill of exceptions to the contrary, it will be presumed that plaintiffs acquiesced in the entry of the record judgment.

This case stands on an entirely different footing to one where a demur...