Hunter Land & Development Co., a Corp. v. Jackson
| Decision Date | 08 July 1922 |
| Citation | 243 S.W. 436,210 Mo.App. 548 |
| Parties | HUNTER LAND & DEVELOPMENT CO., a Corporation, et al., Respondent, v. C. D. JACKSON, Sheriff, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Mississippi County Circuit Court.--Hon. Frank Kelly Judge.
AFFIRMED.
Judgment affirmed.
J. C McDowell and J. M. Haw for appellant.
(1) The court erred in granting respondents a temporary injunction and upon the hearing, in granting the permanent injunction. All the testimony shows that respondents made no tender of the amount of costs later admitted to have been properly allowed until long after the temporary injunction was allowed. They were not entitled to any relief unless and until they paid all that was due, including costs. Overall v. Ruenzi, 67 Mo. 203, 207; State ex rel. v. Flad, 26 Mo.App. 500, 503-4; Dickhans v Olderhide, 22 Mo.App. 76, 79. (2) The evidence of respondents is that the items allowed for C. E. Swank are all they are disputing, yet they failed to pay the following other items when they paid $ 1516.52 into court, November 8, 1921, viz: St. John's Levee and Drainage District for data, $ 15; Charleston Abstract Company, ownership list for district, $ 50 and costs to date of payment into court. A tender to be effective must include not only the full amount due but also all costs accruing to the date thereof. R. S. 1919, sec. 1713; Henry v. Lowe, 73 Mo. 96; Kinney v. Railroad, 69 Mo.App. 302. (3) The proper proceeding would have been for the respondents to have applied to the court out of which the fee bill issued. An injunction will not issue from one court to prevent a sheriff from enforcing a fee bill, alleged to be void, issuing from another court. R. S. 1919, sec. 1675; Same, sec. 1716; Farris v. Smithpeter, 180 Mo.App. 466, 469; Scrutchfield v. Sauter, 119 Mo. 615. (4) The fee bill was issued according to law and its collection should not have been interfered with by injunction. R. S. 1919, secs. 4482, 4485 and 10986; Farris v. Smithpeter, 180 Mo.App. 466, 469. (5) If complainants acted in such way as to raise an estoppel against themselves they should not be granted an injunction. They retained the benefits and should pay for the services. 22 Cyc, 777; Runnels v. Laswell, 219 S.W. 980, 981; Jones v. Smith, 186 S.W. 1088, 1090; Valle's Heirs v. Fleming, 29 Mo. 152. (6) An injunction is a matter of grace and not of right, and when the benefit to plaintiff will be disproportionate to the injury to defendant, relief will be denied and plaintiff will be remitted to his legal remedy for the vindication of his right. Schopp v. Schopp, 162 Mo.App. 558, 564; Barnes v. Construction Co., 257 Mo. 175, 195; Johnson v. United Railways Co., 227 Mo. 423, 450. (7) Even though the judgment should be found to be imperfect in form or to contain irregularities, it should not be nullified by injunction. Especially is this true since it is not productive of substantial injury to respondent. R. S. 1919, secs. 1276 and 1550; Mott v. Bernard, 97 Mo.App. 265, 270; Sauer v. Kansas City, 69 Mo. 46, 49; Davis v. Staples, 45 Mo. 567, 570. (8) The court erred in holding that the nunc pro tunc order of the county court, offered in evidence by appellant, correcting and amending its order of August 6, 1921, by itemizing the fees allowed, was subject to attack in this, a collateral, proceeding and cause. Tie and Timber Co. v. Pulliam, 137 Mo. 1, 19 and 20; Collier v. Lead Company, 200 Mo. 246, 276-278; Mann v. Schroer, 50 Mo. 306; State v. Ellison, 210 S.W. 401, 403. (9) The county court had jurisdiction and authority to make the nunc pro tunc order, and the evidence was sufficient. State v. Parmeley, 234 S.W. 867; State v. Ellison, 210 S.W. 401; Lusk et al. v. Seed & Grain Co., 204 S.W. 742; Henry County v. Salmon, 201 Mo. 136, 151-152. (10) At the time the temporary writ was issued the respondents had not, and have not yet, paid or tendered the amount allowed by the county court and the cost that had accrued, Overall v. Ruenzi, 67 Mo. 203, 207; State ex rel. v. Flad, 26 Mo.App. 500, 503; Dickhaus v. Olderhide, 22 Mo.App. 76, 79.
Gallivan & Finch for respondent.
(1) The county court is a court of limited jurisdiction and has only such powers as are expressly conferred upon it. Sec. 36, art. 6, Constitution of Missouri; State ex rel. Johnson, 138 Mo.App. 306; Bayless v. Gibbs, 251 Mo. 506; Sturgeon v. Hampton, 88 Mo. 213; Saline County v. Wilson, 61 Mo. 239. (2) The county court has been given no power to quash executions or to retax costs, as sections 1675 and 1716, R. S. 1919, apply only to courts of general jurisdiction. Brownfield v. Thompson, 96 Mo.App. 340; Carr v. Railroad, 109 Mo.App. 388. (3) The drainage law is a code unto itself and no appeal lies from its order or judgment unless expressly allowed by the drainage law, and since the drainage law does not provide for an appeal from an order taxing costs in drainage proceedings, no appeal would lie. Pemiscot County v. McCarty, Judge, 208 S.W. 450; Pemiscot County v. McCarty, Judge, 208 S.W. 452; Buschling v. Ackley, 270 Mo. 157, 192 S.W. 727; Sec. 4488, R. S. 1919. (4) The county court can speak only by its records, and since its records show that it never passed upon or allowed the items complained of in the fee bill there was no authority in law for the action of the clerk in including same in the fee bill presented. Morrow v. Pike County, 189 Mo. 620; Henry County v. Solomon, 201 Mo. 151. (5) Engineers' costs in drainage proceedings are governed by contract with the county court representing the district and the engineer, and, therefore, the clerk could not issue execution for same until the court had passed upon the bill and allowed it. It is not a fixed compensation to be taxed as costs. Sec. 4527, R. S. 1919. (6) An injunction may be granted to prevent a judicial sale or sale by sheriff. Gunby v. Brown, 86 Mo. 253; Goldie Constr. Co. v. Ruch Constr. Co., 112 App. 147. (7) A judgment entered nunc pro tunc at a subsequent term must be based upon some minute or written record made at the time, and can never be based upon the recollection of the court. Fidelity & Deposit Co. v. Fulsome, 193 S.W. 618; Belkin v. Rhodes, 76 Mo. 643; Ross v. Railroad, 141 Mo. 395; State v. Jeffars, 64 Mo. 378; Monk v. Wabash Railroad, 166 Mo.App. 692. (8) A judgment nunc pro tunc is presumed to have been based upon proper evidence, but it is only a presumption that vanishes when the facts appear. State ex rel. Vaile, 122 Mo. 40; Belkin v. Rhodes, 76 Mo. 652; State ex rel. v. Baldwin, 109 Mo.App. 573; Page v. Chapin, 80 Mo.App. 159; Young v. Young, 165 Mo. 630, 631.
Action to secure a permanent injunction to prevent appellant as sheriff from selling land of plaintiff's under a fee bill issued by the clerk of the county court of Mississippi county. Upon trial, the judgment was rendered for plaintiffs perpetually enjoining defendant from making the sale and defendant has appealed.
A petition signed by plaintiffs and others was filed in the county court of Mississippi county asking for the incorporation of a drainage district. The preliminary steps were taken in which considerable costs and expenses accrued. On final hearing the petition was dismissed and petitioners adjudged to pay the costs. Only a few items of cost were allowed by order of the county court. The clerk afterward issued a fee bill against plaintiffs for the costs and included therein all the items of cost found in the engineer's report, though these items had not been approved and allowed by the court, at least as far as the record showed at that time. The sheriff demanded payment from plaintiffs and they refused to pay the items that had not been allowed by the court and he then notified them that he would levy on their land and sell it to enforce payment. This suit followed.
The court finally found in their favor and made the injunction perpetual. While the trial was in progress, the county court made a nunc pro tunc entry allowing all the costs contained in the fee bill. This nunc pro tunc judgment was then offered in evidence and was admitted over plaintiffs' objection. Plaintiffs then asked for a continuance of this case until a writ of certiorari could be sued out and the validity of the judgment nunc pro tunc tested. This was denied. The plaintiffs then offered all the orders of the court and the clerk's minutes and files in his office in relation to the whole matter. These were excluded at the time but afterward admitted.
The order of the county court dismissing the petition concluded as follows: "It is further ordered that all the costs in this case be and the same are hereby assessed against petitioners as follows (naming them) and that due process for all costs issue in this behalf including all engineering and other costs incurred in said cause." The files had no endorsements on them except in one instance. A supplemental bill of costs incurred after the filing of the preliminary report of the viewers and engineers covering a few items had the letters and endorsed on the back. It was admitted that Lee Presson (presumably the county court clerk, though that fact is not shown) if present, would testify that these letters were the customary indication of the examination and approval of a bill by the county court and that they were placed on the bill after it had been examined by the county court as an indication of its approval. It was not shown that the first report which contained the main items in dispute had this or any other endorsement on it.
It seems to be well settled in this State that a sale of real estate under execution may be enjoined in a proper case when the sale, if permitted to proceed, would cast a cloud upon...
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