Engler v. Knoblaugh

• Decision Date: 28 April 1908
• Citation: 110 S.W. 16,131 Mo. App. 481
• Parties: ENGLER v. KNOBLAUGH.
• Court: Missouri Court of Appeals

110 S.W. 16

131 Mo. App. 481

ENGLER v. KNOBLAUGH.

St. Louis Court of Appeals. Missouri.

April 28, 1908.

1. HIGHWAYS — PROCEEDINGS TO ESTABLISH.

Rev. St. 1899, § 9464 (Ann. St. 1906, p. 4345), provides that in proceedings to establish a highway, if the person through whose land the road passes objects to the damages awarded him, an issue shall be made, a jury sworn to determine the damages to which he is entitled, and judgment given in conformity to the jury finding. Section 9461 provides that the commissioners to assess damages after marking out the road shall report to the county court, describing the location of the road, and assessing the items of damages sustained by each person through whose land the proposed road passes, including the erection of fences if the land is inclosed and in the opinion of the commissioners the location of the road makes a fence necessary. Section 9462 provides that, if no objections are made to the commissioners' report, and the proceedings are regular, the county court shall order the road established according to their report, and render judgment against the petitioner and in favor of each owner of land affected for the damages assessed by the commissioners, and the petitioner shall pay the amount to the county treasurer for the use of the persons entitled, Held, that the court has no authority in such a proceeding to render judgment binding the petitioner to construct and forever maintain a fence along the new road when one is required to protect an owner through whose land the road will run.

2. JUDGMENT — EQUITABLE RELIEF — ERROR IN ENTERING.

Where a clerk, in entering a judgment rendered on the report of commissioners appointed

to assess damages in a proceeding to establish a road, inserted a recital that the commissioners had taken into consideration the expense to the landowner of erecting a fence along the road, and had included that expense as part of the damages awarded, whereas the commissioners' report said nothing about fencing, and assessed the damages as the value of the ground taken for the road, the mistake is an irregularity which a court of equity could not correct in a separate suit.

3. SAME — FRAUD, ACCIDENT, OR MISTAKE — COLLATERAL ATTACK.

A proceeding lies in equity within proper limits to restrain the judgment of a court of law which was procured by fraud, or given through accident or mistake, and such a proceeding is a direct, not a collateral, attack.

4. ACTION — DEFENSES — EQUITABLE AND LEGAL DEFENSES.

A party may avail himself in his answer of any defense to an action, either legal or equitable, and may ask in his answer affirmative relief of an equitable character against a contract or supposed cause of action that plaintiff is asserting; such an answer being in the nature of a cross-bill in equity.

5. JUDGMENT — EQUITABLE RELIEF — RIGHT TO RELIEF.

A person asking equitable relief from a false entry of judgment in a legal proceeding must show that he was himself free from negligence in respect of the entry.

6. APPEAL — REVIEW — PLEADINGS — EQUITABLE RELIEF WITHIN SCOPE OF ANSWER.

Defendant, in his answer to an action on a judgment, sought relief against a false entry of the judgment, charging fraud. The evidence, admitted without objection, did not prove fraud in respect of the entry, but established a clear case of accident or mistake, imputable to no want of care on defendant's part, but rather to negligence of plaintiff's attorney. The court found that the entry was procured by plaintiff without finding that he fraudulently procured it, and restrained the action on the judgment. No contention was made on motion for a new trial that the relief granted was outside the scope of the answer, nor was any question raised during the trial as to variance between the proof and the answer. Held, that the judgment would not be reversed and a new trial granted because the false entry appears to have occurred through misadventure instead of fraud.

7. EQUITY — GROUND OF RELIEF — "ACCIDENT."

"Accident" is known in equity as an unforseen occurrence affecting a person injuriously, and not due to his own negligence.

8. SAME — MISTAKE IN COURT PROCEEDINGS.

Equity will grant relief against misprisions and mistakes in court proceedings not of a judicial character, and even against judicial mistakes, where the court has been misled as to a fact, and has pronounced a judgment which otherwise would not have been given.

9. JUDGMENT — RELIEF AGAINST ENFORCEMENT OF — FALSE ENTRY.

In a proceeding in the county court to establish a road, the commissioners appoint to assess damages reported defendant's damaged at $50, without charging any part of the sum to fencing he might be compelled to build in consequence of the opening of the road. He objected orally to the report, and it was agreed that if the order was made allowing him the $50 assessed, and also containing a provision that plaintiff should construct and maintain the necessary fencing, he would not appeal. Judgment was rendered on those conditions. Plaintiff was not present in person or by attorney when the judgment was rendered, and it did not appear that the attorney knew of the annexed condition, but he prepared a form for entry of the judgment, which omitted the condition, and erroneously recited that the commissioners had assessed damages for the erection of a fence, and the clerk entered the judgment according to the form. Defendant had no knowledge of the false entry until he had accepted the damages awarded, and it was too late to have the entry corrected in the county court, or to take an appeal. Held, that he was entitled to equitable relief against the enforcement of the judgment as entered.

10. SAME — EQUITABLE RELIEF — RESTRAINT FOR FRAUD, ACCIDENT, OR MISTAKE.

While the record of the county court imports absolute verity, and can only be impeached by matter of record in the judgment roll so far as an amendment at law is concerned, parol evidence of cogent and convincing character is admissible in equity as a basis of a decree to restrain a judgment in certain cases of fraud, accident, or mistake.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by John Engler against John J. Knoblaugh to recover a statutory penalty for failure to open a road according to an order of court. Judgment for defendant, and plaintiff appeals. Affirmed.

H. H. Bloss, for appellant.

GOODE, J.

This action is based on section 9466 of the Revised Statutes of 1899 (Ann. St. p. 4346). Said section provides for a penality of $5 a day to be recovered in an action of debt by any party in whose favor judgment has been given for a private road over the land of another from the owner of the land for each day the road remains unopened after the date it is ordered opened. The penalites sued for amount to $255 for the period the road was kept closed, subsequent to December 6, 1906, the date by which it was to be opened according to the order of the court, to the date of the filing of the petition in the present action, February 6, 1907. The like penalty per diem is prayed for each day after the last date until defendant opens the road. In a proceeding instituted by appellant in the county court of Lawrence county for the establishment of a private road over the land of respondent the commissioners appointed to assess damages reported respondent's damages at $50, without charging any part of the sum to fencing, respondent might be compelled to build in consequence of the opening of the road. In this respect the report did not conform to section 9461 of the Statutes, which regulates the reports of commissioners in such cases. Respondent was unwilling to accept said sum in full for the damages he would sustain from opening the road. He filed no written objection or exception to the report of the commissioners, but objected orally in open court. A colloquy regarding his objection ensued between him and the judges of the county court, and it was finally agreed he would not appeal from an order to open the road, if the order allowed him the $50 assessed by the commissioners as damages, and contained a condition that appellant should construct and forever maintain the fencing made necessary by the road. The county court rendered judgment for the opening of the road on those conditions; but in entering the judgment the clerk omitted from the entry part of it, i. e., the condition annexed by the court that appellant should build and maintain whatever fencing was made necessary. The entry was also erroneous in reciting the commissioners in their report had found respondent's damages as follows: "That the damages of the owner of said land, viz., John J. Knoblaugh, on account of the establishment of said road and the erection of a three-wire fence on the east side of said road, one being now erected on the west side, will be the sum of $50, and the said John Engler, having paid said sum of $50 to the treasurer of Lawrence county for the use of the owner of said land," etc.

In truth the commissioners reported nothing about the fencing, and assessed nothing in respondent's favor for the erection of a fence; but the whole sum allowed as damages was for the strip of land one rod wide and a quarter of a mile long which would be taken for the road. After the filing of the report appellant deposited $50 with the clerk. He was not present in person or by attorney when the judgment to open the road was given, and is not shown to have known of the condition annexed to the judgment regarding the fencing. His attorney, who lived elsewhere, drove to the county seat with a form for the entry of the judgment a day or two after it was rendered, gave the form to the clerk of the county court, and said official wrote the record in accordance with the form. Appellant's attorney acted innocently in furnishing a form for the entry which showed a judgment different from the one actually rendered, as he was unaware any...