Donnell v. Wright

CourtUnited States State Supreme Court of Missouri
Writing for the CourtLamm
Citation97 S.W. 928,199 Mo. 304
Decision Date21 November 1906
PartiesDONNELL v. WRIGHT et al.
97 S.W. 928
199 Mo. 304
DONNELL
v.
WRIGHT et al.
Supreme Court of Missouri, Division No. 1.
November 21, 1906.

APPEAL—DISPOSITION OF CAUSE—REVERSAL— EFFECT IN LOWER COURT.

Under Rev. St. 1899, § 866 (Laws 1903, p. 105), providing that appellate courts in cases on appeal shall examine the record, and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as the circuit court ought to have given, where the Supreme Court reverses a judgment in favor of defendant in ejectment, but fails to order the cause remanded or a new trial to be had, the lower court is without jurisdiction to proceed in the cause.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by M. S. C. Donnell against William P. Wright and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

R. B. Garnett, for appellant. C. O. Tichenor, for respondent.

[97 S.W. 929]

LAMM, J.


On the theory there was an ejectment suit pending in the circuit court of Jackson county, wherein Donnell was plaintiff and William P. Wright, Emaline Stacks, and Robert Taubman were defendants, Donnell, on March 21, 1903, suggested the death of Taubman, and sued out a writ of scire facias to revive the proceedings against the executors of his will and his widow and heirs. Service was had of, and return made to, that writ. On issue joined, as hereinafter set forth, judgment went against plaintiff, and he appeals.

In the determination of the question presented to us, a résumé of the history of the controversy, as well as of the facts in judgment, will not be amiss. Thus: The real estate in controversy is a part of a lot in block 31 in McGee's addition to the city of Kansas. In 1882 said parcel of ground (said to be a valuable one) was bid off at a tax sale for delinquent taxes, and Donnell for a sum (said to be trifling) received a tax deed upon which he bases title. It seems the lot belonged to Taubman, who, either then or shortly thereafter, had contracted to sell it to one Lynch. Pending this sale, and for the purpose of removing the cloud of Donnell's tax deed, Lynch lodged a bill in equity in the Jackson circuit court to clear up the title; Taubman causing said suit to be instituted and being a party to its prosecution. The bill in the Lynch Case challenged the validity of Donnell's tax deed on six grounds; the sixth ground being as follows: "That at such sale, on the 8th day of December, 1882, the bidders in attendance thereat confederated with each other not to bid against each other for the property there offered for sale, and the tract or lot aforesaid was bid off by defendant in pursuance and at the time of such understanding, and acting thereon." See Donnell v. Wright, 147 Mo., loc. cit. 645, 49 S. W. 874. It seems, however, though issue was joined on the question of fraud, that issue was ignored or abandoned in the equity suit, and the case proceeded to judgment below, and was considered here on Donnell's appeal on only five grounds (see Lynch v. Donnell, 104 Mo., loc. cit. 521, 522, 15 S. W. 927), and his tax deed, adjudged void below, was held valid, and the judgment reversed, and the bill dismissed here (104 Mo., loc. cit. 530, 15 S. W. 927). Such was the end of Lynch v. Donnell.

Thereat Donnell (turning) himself took the initiative by bringing the present suit in ejectment in January, 1895, against Taubman and his tenants. Thereupon defendants, by way of defense, revived the old charge of fraud in the concoction of Donnell's deed, abandoned in the Lynch Case, and sought to avoid Donnell's title because of a fraudulent combination between him and other bidders at the tax sale. This defense was successful below, and judgment went for defendants. From this judgment Donnell appealed, and the case went off in this court on the theory of res adjudicata (See Donnell v. Wright, 147 Mo., loc. cit. 646 et seq, 49 S. W. 874); Donnell contending the issue of fraud, though not tried out, was within the pleadings and issues in Lynch v. Donnell, and hence was set at rest by that case, and defendants contending contra. This court sustained Donnell's view, but reversed the case without remanding; the exemplification of our judgment and opinion, filed below, showing the following clause erased from the usual form of mandate: "That the said cause be remanded for further proceedings to be had in conformity with the opinion of the court herein delivered." It is not shown that any motion was filed in this court to recall said transcript of our opinion and judgment, or modify our judgment and send down a mandate to proceed, nor was any attempt made in this court by nunc pro tunc entry to have the judgment show that the cause was remanded for further proceedings, nor was the attention of this court called in any way or at any time to the anomolous condition of its record, whereby a judgment in favor of defendants was reversed, but the cause was left suspended (so to speak) in midair, by our failure to make an order reversing the judgment, granting a new trial, and remanding the cause.

The judgment of this court in Donnell v. Wright was rendered on February 15, 1899, and thereafter, after allowing the matter to sleep for over three years, Donnell suggested the death of Taubman, and sued out of the circuit court of Jackson county a scire facias against Taubman's heirs and the executors of his last will to revive the proceedings. An order was made that said heirs and representatives appear and show cause. They did appear, and filed a return or pleading to the writ of scire facias, wherein (for cause) it was alleged: First, that the suit was not pending in that court, judgment having been rendered therein, from which plaintiff appealed; that the judgment was simply reversed, and the cause was not remanded. Second, that the judgment was reversed by the Supreme Court December 23, 1898, and no action had been taken in any way since said date; that the other defendants were simply tenants, and have long since removed from the premises and gone away; that under such circumstances, even if the plaintiff had the right to revive, which he has not, he has lost it by his laches. Third, that the defendant, Robert Taubman, died December 31, 1899; that his will was duly probated in January, 1900, and the notice to creditors as required by law was published, beginning in said month; and that the time for bringing suit against said estate is long since expired. To the foregoing return plaintiff filed a plea, admitting the judgment was reversed by this court, but denied the cause was not remanded, and alleged that, in law and in fact, it was remanded, and is now properly and legally pending in the circuit court of Jackson county. Plaintiff further alleged that the death of Robert

97 S.W. 930

Taubman was suggested at the January term, 1903, of said court, and a scire facias sued out to revive this suit, and plaintiff denied that he is chargeable with any laches in the premises. Denying, furthermore, all allegations in defendants' return, except those admitted as aforsaid, plaintiff alleged that the return of defendants was insufficient, and therefore moved the same to be quashed and set aside, and that the conditional order of revivor heretofore made be adjudged unconditional, absolute, and final. On issue thus joined a hearing was had, and, for the purpose of that hearing, admissions were made, showing a boneless contention of fact; the facts being conceded to all intents and purposes as hereinbefore set forth. The trial court, having briefly found them as aforesaid, adjudged as follows: "Therefore the court doth hold that plaintiff was not entitled to have his suit as revived, and doth find and adjudge that the same be not revived, and the plaintiff take nothing by his suit."

Defendant's learned attorney does not undertake to sustain the action of the lower court on the ground of laches, or on the theory that Taubman's executors had published notice of their letters of administration for such time that the statute of limitations had run in favor of the estate against all claims. He seeks to sustain the lower court on the theory the cause was not pending in that court at the time the writ of scire facias was sued out, and was not so pending because this court did not award a new...

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21 practice notes
  • Cullen v. Johnson, No. 27983.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1930
    ...shall seem agreeable to law. Sec. 1514, R.S. 1919; Joy v. Cale, 124 Mo. App. 569; Patterson v. Patterson, 200 Mo. 335; Donnell v. Wright, 199 Mo. 304. (2) The court erred in refusing to give to the jury defendant's peremptory instruction in the nature of a demurrer to the evidence, offered ......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...sheriff are void and conferred no jurisdiction over relators. State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Donnell v. Wright, 199 Mo. 304, 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill ......
  • Melton v. City of Oklahoma City, Nos. 85-1738
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 21, 1989
    ...correction of errors nisi, upon the theory we commit none ourselves tickles the judicial fancy, but is quite untrue." Donnell v. Wright, 199 Mo. 304, 97 S.W. 928, 932 Moreover, the district court's failure to instruct the jury on the falsity requirement cannot be overlooked. See court op. a......
  • Mangold v. Bacon
    • United States
    • United States State Supreme Court of Missouri
    • June 7, 1911
    ...correcting the errors of lower courts we do not proceed on the theory we make none of our own. Donnell v. Wright, 199 Mo., loc. cit. 317, 97 S. W. 928. I have read somewhere an apt paraphrase by a wise judge on Lincoln's apothegm anent fooling all the people all the time (judge and case bot......
  • Request a trial to view additional results
15 cases
  • Cullen v. Johnson, No. 27983.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1930
    ...shall seem agreeable to law. Sec. 1514, R.S. 1919; Joy v. Cale, 124 Mo. App. 569; Patterson v. Patterson, 200 Mo. 335; Donnell v. Wright, 199 Mo. 304. (2) The court erred in refusing to give to the jury defendant's peremptory instruction in the nature of a demurrer to the evidence, offered ......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...sheriff are void and conferred no jurisdiction over relators. State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Donnell v. Wright, 199 Mo. 304, 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill ......
  • Mangold v. Bacon
    • United States
    • United States State Supreme Court of Missouri
    • June 7, 1911
    ...correcting the errors of lower courts we do not proceed on the theory we make none of our own. Donnell v. Wright, 199 Mo., loc. cit. 317, 97 S. W. 928. I have read somewhere an apt paraphrase by a wise judge on Lincoln's apothegm anent fooling all the people all the time (judge and case bot......
  • Howell v. Sherwood
    • United States
    • United States State Supreme Court of Missouri
    • May 7, 1912
    ...formula used by this court ever since its existence in sending a case down for a new trial. Donnell v. Wright, 199 Mo., loc. cit. 315, 97 S. W. 928. Again if thought erroneous, why was not a timely motion made here for a modification during the term while we held it in our breast and could ......
  • Request a trial to view additional results

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