Daggs v. Smith

• Decision Date: 22 February 1906
• Citation: 193 Mo. 494,91 S.W. 1043
• Parties: DAGGS v. SMITH et al.
• Court: Missouri Supreme Court

91 S.W. 1043

193 Mo. 494

DAGGS v. SMITH et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. MOTIONS—RECORDS—ENTRIES.

It was not necessary for the clerk, in entering on his record a motion to review and correct a judgment, to copy the motion, notice, and the affidavit of service into the record.

2. APPEAL — RECORD—BILL OF EXCEPTIONS— NECESSITY FOR BILL.

A motion to review and modify a judgment could only be brought before the Supreme Court by a bill of exceptions.

3. SAME—FACTS SHOWN BY BRIEFS.

The Supreme Court cannot go into the briefs for facts that do not appear in the record proper.

4. SAME—FAILURE TO MAKE OBJECTION BELOW— INVITED ERROR.

Where, in a suit to set aside the foreclosure of a deed of trust, plaintiff acquiesced in the amount found to be due by her under the deed until the term of court had passed at which the judgment was rendered, she would not be heard to complain on appeal that the amount was excessive.

5. SAME—HARMLESS ERROR—STATUTES.

Where plaintiff, in a suit to set aside a mortgage foreclosure against her, prayed that she be permitted to pay for and discharge the debt, and alleged that she tendered the money into court, the fact that a personal judgment

was rendered against her for the amount found to be due, though not authorized by the pleadings, was no ground for reversal under Rev. St. 1899, § 865, prohibiting a reversal for error not materially affecting the merits.

Appeal from Hannibal Court of Common Pleas; D. H. Eby, Judge.

Suit by Malinda E. Daggs against John Henry Smith and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. J. Daggs, for appellant. F. L. Schofield, for appellees.

VALLIANT, J.

In the brief for plaintiff in error, who was also the original plaintiff, it is said that this is a suit to remove a cloud from the plaintiff's otherwise clear title and for damages resulting to her from frauds and conspiracy on the part of defendants. By the finding of the trial court, to which there was no exception, there was no fraud or conspiracy, and therefore we may disregard that branch of the case.

The substance of the petition, which is quite long, is as follows: Plaintiff was the owner of certain land in Scotland county, worth $16,000, rental value $1,000 per annum. She also had a large amount of personal property on the land, and all this, land and personalty, she left in the custody and control of one Bechtel, who was her partner, while she was absent in Arizona. On April 3, 1900, she executed her note for $6,200 to one Swan, due five years after date, and five interest notes, for $372 each, for money borrowed, and to secure the notes she executed a deed of trust conveying the land to defendant John Henry Smith, trustee, with power to sell on default of payment, etc. These notes and this deed of trust the plaintiff sent by mail to the trustee, through whom or whose firm the loan was made, at Kansas City, and the deed was duly recorded. Default was made in payment of the interest due April 3, 1901. The trustee, at the request of Swan, advertised and sold the land, and it was struck off to defendant Q. V. Gillispie for $6,000, who in turn executed her notes to Swan for the amount of her bid and a new deed of trust to secure the same. Gillispie brought suit for possession against the tenants of plaintiff, recovered judgment, and was put into possession. The petition goes on at considerable length to make statements indicating that the sale by the trustee and the proceedings thereafter were the result of fraud, by the trustee conspiring with plaintiff's partner Bechtel and with Swan and others to deprive her in her absence of her property. The petition admits that default in the interest on the deed of trust debt to Swan had been made, and taxes on the property were unpaid, but prays that the trustee's sale may be set aside, and the deeds following and resulting from that sale be canceled; that her deed of trust notes be canceled, and that her $6,200 debt and interest be decreed to be a lien on the land; and that she be given a reasonable time in which to pay it off, and that the rents and profits be found and deducted from the debt, and that she have judgment for $5,000 damages for the fraud. What answer, if any, was filed, the record does not show; but in the brief for plaintiff in error it is said that the answer was a general denial for all the defendants except two, who, though served with process, made default.

When the cause came on for trial there was no evidence introduced; but the parties appeared and agreed that the court might make certain findings of fact thereupon. The decree recites that the court did find certain facts, among which were that the plaintiff owed on her deed of trust debt, for principal, interest, and taxes, $7,766.84; that the defendants were not guilty of any fraud or conspiracy; but that the trustee's sale was invalid because it was not advertised according to law. After reciting the findings of fact the decree goes on: "It is therefore, by consent and agreement of the plaintiff and the answering defendants, ordered, adjudged, and decreed" that the trustee's sale be set aside, and all the deeds and transactions...