Flynn v. Edwards

• Decision Date: 10 December 1888
• Citation: 36 F. 873
• Court: U.S. District Court — Western District of Missouri
• Parties: FLYNN v. EDWARDS.

36 F. 873

FLYNN v. EDWARDS.

United States Circuit Court, W.D. Missouri, Western Division.

December 10, 1888

George H. English, for plaintiff.

A Comingo, for defendant.

PHILIPS J.

This is an action of ejectment for the recovery of the possession of 40 acres of land situated in the county of Bates, ouster laid in 1883. The plaintiff is recognized as a common source of title. The defendant claims title by mesne conveyances, under a tax deed. The evidence in the case shows that this land was returned as delinquent for taxes unpaid by the plaintiff thereon. Pursuant to the statute (section 6836) suit was instituted in 1879 against the plaintiff in the circuit court of Bates county, Mo., in the name of the state, at the relation of the county collector, to enforce, by judgment the collection of said tax against said land. There was a personal service upon the defendant, and a judgment was duly rendered against him therein on the 5th day of August, 1880 enforcing the lien of the state for the taxes and costs, and directing a special fi. fa. for the enforcement thereof. Special execution issued thereon on the 11th day of September, 1880, under which the land, after due advertisement, was sold on the 11th day of November, 1880 and Benjamin B. Canterbury and W. A. Scott became the purchasers thereof at the sum of $76, which sum was then paid to the sheriff; and the sheriff, in due time, made his report of sale thereof, and on the day following executed, acknowledged, and delivered a deed therefor to the said purchasers. Afterwards, on the 29th day of March, 1881, the said Canterbury and Scott, by deed of warranty, duly conveyed the said land to the defendant herein in consideration of the sum of $200. At the time of the sale the land was unimproved and unoccupied, and was of very different quality. The defendant took possession after his purchase, and has ever since remained in possession. He has inclosed the same with a fence, and put valuable improvements thereon, using the ground principally for feeding and herding cattle. The plaintiff assails the validity of defendant's title on various grounds, which will be considered in their order.

1. It is claimed, first, that, after the rendition of said judgment, and before the sale under the execution, the plaintiff paid to the collector the whole amount of debt and costs then due. It may, for the purposes of this opinion, be conceded to plaintiff that if, as a matter of fact, he did so pay to the collector the amount of said judgment and costs, that any subsequent sale of the land under said judgment was unauthorized, and no title would pass thereunder. The principal and interest found due by the judgment on the 5th day of August, 1880, amounted to $34.70. This debt by provision of the statute, and the direction of the judgment, bore 10 per cent. interest. On the day of the issuance of the execution the interest amounted to 34 cents, making principal and interest then due $35.04. The judgment shows that, after the rendition of the judgment, the plaintiff did send to the collector the sum of $47.12. There is some controversy as to the date of the receipt of this money. Looking at the whole evidence, written and parol, the best conclusion at which I can arrive is that this money was received by the collector on or about the 29th of September, 1880, which would make the amount of principal and interest then due $35.20. On the date last above named the collector wrote a postal card to the plaintiff, in which he stated that the $47 and some cents had just been handed to him in a draft, and notifying him that it lacked $7.74 of paying the judgment, and that if he would send the money within five or six days, that would satisfy the claim; otherwise the land would be advertised for sale, incurring additional costs. On the back of the execution the clerk indorsed an itemized statement of the debt and costs, as by statute in such case made and provided, (section 1019, Rev. St.) The aggregate amount of such costs were $18.49, which, added to the debt, and interest, would make an aggregate of $55.53; so that, if the amount of costs were correct, the sum paid by plaintiff to the collector was short about $6.40. Plaintiff's counsel first contends that there was no judgment in fact awarding costs. Without conceding that such award was essential to be expressly made in the judgment, it is sufficient to say that the judgment, in express terms, after ascertaining the amount of the debt, and declaring the lien on the land, says:

'The court further adjudges that the sum of thirty-four dollars and seventy cents, together with interest, fees, and commissions, and costs of this action, constitute and are a lien against said parcel of land.'

The judgment then further directs that the land be sold under special fi. fa., 'in satisfaction of said sum of money, together will all costs, interest, fees, and commissions adjudged herein to be due thereon. ' As a matter of practice, under the Missouri statutes, the amount of the costs are never stated in the judgment. 'The judgment is, for the debt so much, and damages so much, and costs, without specifying what exact sum; and on the execution the costs are indorsed, and this has ever been considered in this state sufficient authority to make the costs. ' McKnight v. Spain, 13 Mo. 538. The clerk, as a matter of fact and practice, taxes up the costs after judgment, and enters them in a fee-book kept therefor, and when he issues execution he simply enters an itemized amount of these fees upon the back thereof. 'Such a judgment for costs, being a final disposition of the case, is like any other final money judgment of the circuit court, and constitutes a lien for the costs * * * in favor of the party prevailing. ' Beedle v. Mead, 81 Mo. 304. The costs 'are fixed by law, and the sum is a mere matter of calculation,' to be made, of course, by the clerk. Bobb v. Graham, 15 Mo.App. 296.

The next contention of plaintiff is that among the items of costs so stated by the clerk are the following, which he claims are improperly charged, to-wit:

'Alias writ & copy, $1.50; copy of petition, seal, &c., $1.25; fee-bill and execution, $1.00; original writ, copy of petition, copy of writ, $2.00; also a return of the sheriff of Cass county, 50 cents,-- aggregating $6.25.'

It is claimed by plaintiff's counsel there was never an original writ of summons, copy of petition, etc., and but one alias writ, so called, issued by the clerk, and that was the one served on the plaintiff in Jackson county, Mo. For proof of this he relies upon a certified transcript of the record and proceedings had in the tax suit, from the circuit clerk's office of Bates county, which transcript only gives a copy of what purports to be an alias writ of summons sent to Jackson county, on which service was had. It is not satisfactory to my mind that the general certificate, in the usual perfunctory style, attached by the clerk to the transcript, is sufficient evidence to justify the court, in this collateral proceeding, in holding that there was but one writ of summons issued in the case. The transcript of the record shows that the petition in the tax suit was filed on the 10th day of September, 1879, and it would be fair to presume that the writ of summons went instantly, and this presumption is confirmed by the subsequent entry of record made by the court at the March term, 1880, to which term an original writ of summons would have been returnable. This record recites: 'Now, at this day, it is ordered that an alias writ issue to Jackson county, Mo.' The presumption therefore, must be...