Daggs v. Smith

• Decision Date: 22 February 1906
• Parties: MALINDA E. DAGGS, Plaintiff in Error, v. JOHN HENRY SMITH et al
• Court: Missouri Supreme Court

91 S.W. 1043

193 Mo. 494

MALINDA E. DAGGS, Plaintiff in Error, v. JOHN HENRY SMITH et al

Supreme Court of Missouri, Division One

February 22, 1906

Error to Hannibal Court of Common Pleas. -- Hon. D. H. Eby, Judge.

Affirmed.

A. J Daggs for plaintiff in error.

(1) This court will review the record proper in any case brought to this court by a writ of error, and correct it agreeable to law. R. S. 1899, sec. 868; South St. Joseph, etc., Co. v Bretz, 125 Mo. 474; Richard v. George, 34 Mo 109; Railroad v. Lewright, 113 Mo. 660; Railroad v. Carlisle, 94 Mo. 166; State ex rel. v. Scott, 104 Mo. 26; Lillie v. Menke, 28 S.W. 648. (2) The findings of facts are not responsive to the facts set up or responsive to the issues on the pleadings. Loan & Trust Co. v. Browne, 157 Mo. 116; Coleman v. Hicks, 158 Mo. 116; Coleman v. Hicks, 163 Mo. 560; Irwin v. Childs, 28 Mo. 578; White v Rush, 58 Mo. 105. (3) The judgment is not responsive to the issues made by the pleadings. Needles v. Ford, 167 Mo. 495; Bulken v. Cross, 140 Mo. 166; Dougherty v. Adkins, 81 Mo. 411; Newham v. Kenton, 79 Mo. 382; White v. Rush, supra; Liese v. Meyers, 143 Mo. 547; Wolf v. Brown, 142 Mo. 612; Davis & Co. v. Roswell & Co., 77 Mo.App. 294. (4) The judgment is given in a lump sum upon one principal note and two coupon notes for an amount about $ 700 in excess of what could possibly be due. Rumsey v. Railroad, 144 Mo. 189; Dewey v. Lenhardt, 27 Mo.App. 517; Stowles v. Freeman, 81 Mo. 544. The terms imposed upon the plaintiff in error of thirty days is too short to redeem; the usual time is six months. (5) Stephenson v. Kilpatrick, 166 Mo. 270. (6) The motion to review the judgment should have been sustained. R. S. 1899, sec. 795; Clawser v. Noland, 72 Mo.App. 217. (7) The court exceeded its jurisdiction. Fairchild v. Cresswell, 109 Mo. 29.

F. L. Schofield for defendants in error.

(1) Both the findings of fact and the decree were made and entered by the express wish, consent and agreement of the plaintiff in error and this appears on the face of the record. In such case in most jurisdictions appeal or writ of error will not lie at all, and in the jurisdictions where appeal or error is permitted, the appellate court will look into or review the record no further than to ascertain that the decree was one by consent of the complaining party, and will then affirm it without considering the merits of the case. 16 Cyc. Law & Proc., 473; 2 Dan. Ch. Prac. (Ed. 1879), star page 973; Van Zile, Eq. Pl. & Prac. (Ed. 1894), sec. 326; 1 Barb. Ch. Prac. (Ed. 1874), 380; 2 Beach, Mod. Eq. Prac. (Ed. 1894), sec. 795; French v. Shotwell, 5 Johns. Ch. 564; Morris, Admr., v. Peyton's Admr., 29 W.Va. 201; Jarvis v. Palmer, 1 Barb. Ch. 379; Atkinson v. Holroyd, 1 Cow. 709; Railroad v. United States, 113 U.S. 266; U. S. v. Babbitt, 104 U.S. 767; Railroad v. Ketchim, 101 U.S. 289; Armstrong v. Cooper, 11 Ill. 540; Laird v. Thomas, 22 Tex. 274; Winter v. Rose, 32 Ala. 447; Garner v. Prewitt, 32 Ala. 13; People v. Owners of Lands, 108 Ill. 442; Warford v. Eads, 10 Iowa 592; Railroad v. Railroad, 96 Iowa 16; Thompson v. Perkins, 57 Me. 290; Note to Perrin v. White, 36 N.J.Eq. 2; McCafferty v. Celluloid Co., 104 F. 305. (2) The alleged error of which plaintiff complains was, if committed, committed by express invitation and assistance of plaintiff in error. In such case she shall not be heard to complain. Flowers v. Helm, 29 Mo. 324; Realty Co. v. Moynihan, 179 Mo. 629; Casler v. Chase, 160 Mo. 418; Johnson v. Brinkman, 116 Mo. 559; Water Co. v. Neosho, 136 Mo. 498; Berkson v. Railroad, 144 Mo. 211; Harper v. Morse, 114 Mo. 317; State v. Manicke, 139 Mo. 545; Christian v. Ins. Co., 143 Mo. 460. (3) Even had the case been contested in the court below, and both parties had, by the introduction of evidence and receiving instructions, treated the issues tried as though they had been duly made by the pleadings, neither could complain in the appellate court. Hilz v. Railroad, 101 Mo. 36; Hill v. Meyer, 140 Mo. 433; Frank v. Frank, 6 Mo.App. 588; Pope v. Ramsey, 78 Mo.App. 157; Hackett v. Underwriters, 79 Mo.App. 16; Kinser v. Kinser, 130 Mo. 126; Baker v. Baker, 136 Mo. 512.

OPINION

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 3d, 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 3d, 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 cancelled, that her deed of trust notes be cancelled, 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 facts 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 affecting the plaintiff's title and possession of the property dependent on the trustee's sale be vacated, that the original deed of trust from plaintiff of date April 3d, 1900, be re-instated as in full force to secure the amount then due on that date, $ 7,766.84, which the decree also charged as a lien on the land, and a personal judgment for the sum, with interest from date of the decree and costs of the suit, was rendered in favor of defendant Swan against the plaintiff, and "that the equity of redemption of the plaintiff in and to said above-mentioned and described real estate be, and the same is forever foreclosed and said defendant Swan have his special writ of execution against said real estate for said amount, with interest and costs of this suit and that said real estate be sold to satisfy the same. But it is further ordered that execution hereon be stayed until the 26th day of October, 1902, at any time before which last-mentioned date plaintiff shall be allowed to pay said sum and interest and costs." That decree was rendered at the September term, 1902. There was no motion for a new trial or in arrest filed and no exception taken. At the next term of the court, January term, 1903, the record shows that there was a motion filed by the plaintiff to "review, modify and correct the judgment," which was overruled, but there was no exception taken. There is no bill of exceptions in the record. The cause is brought here on the record proper by writ of error. From the certified copy of the record proper it seems that the clerk, at the January term, 1903, in entering on his record the filing of the motion to review, copied the motion, the notice and the affidavit of service into his record. That was a useless encumbrance of the record. The record should show the filing of the motion, and the ruling of the court upon it, but the motion should not be copied into the record proper; it can be brought to the attention of the appellate court only by bill of exceptions.

Strictly speaking it cannot be said that what we have before us is even the...