Hutchinson v. Patterson

• Decision Date: 01 March 1910
• Citation: 126 S.W. 403,226 Mo. 174
• Parties: HUTCHINSON v. PATTERSON.
• Court: Missouri Supreme Court

126 S.W. 403

226 Mo. 174

HUTCHINSON v. PATTERSON.

Supreme Court of Missouri. Division No. 1.

March 1, 1910.

1. APPEAL AND ERROR (§ 528) — RECORD — MOTION FOR NEW TRIAL AND EXCEPTIONS TO RULINGS THEREON.

The motion for a new trial and the exceptions to the ruling thereon are properly shown by a bill of exceptions, and the filing of the motion and the order of the court overruling the same by the record proper.

2. APPEAL AND ERROR (§ 583) — RECORD — MATTERS SHOWN BY RECORD.

Where the abstract of record shows the date judgment was rendered, and that on the same day the motion for a new trial was filed, and, by agreement of parties, the motion was taken up and considered, and by the court overruled, as "appears by record entries made at the term," it sufficiently shows that the motion for a new trial was filed during the same term the judgment was rendered.

3. APPEAL AND ERROR (§ 586) — RECORD — SUFFICIENCY OF ABSTRACT.

Where the abstract on appeal sets out the record entry, showing that an affidavit for appeal was filed and docket fee deposited, and the appeal was granted with leave to file the appeal bond within 10 days, it sufficiently shows the contents of the affidavit for appeal, in the absence of any objection thereto in the trial court.

4. APPEAL AND ERROR (§ 937) — AFFIDAVIT FOR APPEAL — PRESUMPTIONS AS TO SUFFICIENCY.

In the absence of any objection to the affidavit for appeal in the trial court, it will be presumed that the trial court examined the affidavit, and found it sufficient before making the order allowing the appeal.

5. JUDGMENT (§ 747) — CONCLUSIVENESS — TITLE TO REAL ESTATE.

Where defendant in ejectment, under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), sets up an equitable cross-defense praying affirmative relief, which would defeat plaintiff's action at law, and the decree sustains such equitable defense, the decree is conclusive on the questions involved, and cannot be litigated between the same parties or their privies in another action.

6. ACTION (§ 25) — NATURE AND FORM — LEGAL OR EQUITABLE.

Where the petition and answer leaves no doubt as to the character of the action, whether in equity or at law, or the nature of the issues to be tried, it cannot be changed by the manner of trial.

7. JUDGMENT (§ 645) — CONCLUSIVENESS — NATURE OF ACTION — LEGAL OR EQUITABLE.

Where affirmative equitable relief is pleaded in an action of ejectment, under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), the action is equitable in character as for quieting title, and the conclusiveness of the decree is as in equity, and not as a judgment in ejectment.

8. EVIDENCE (§ 370) — RECEIVER'S DEED — PROOF OF RECEIVER'S AUTHORITY.

Where a bank receiver sold land under an order of court, and not by virtue of his appointment by the Comptroller of the Currency, the recital in his deed of his appointment by such Comptroller does not entitle the deed to admission in evidence without proof of his authority to sell.

9. EVIDENCE (§ 162) — BEST EVIDENCE — JUDICIAL PROCEEDINGS.

The authority of a receiver to sell land under an order of court cannot be shown by the recitals in the deed, or by oral testimony.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by D. J. Hutchinson against R. A. Patterson to recover land. Plaintiff had judgment, and defendant appeals. Reversed.

H. J. West, Fred Lamb, and Gilbert Lamb, for appellant. C. C. Hammond and J. A. Collet, for respondent.

VALLIANT, J.

Ejectment for 120 acres of land in Chariton county. There was a judgment for the plaintiff, and defendant appealed. The petition is in the usual form. The answer admits possession, asserts title, and denies other allegations in the petition. Then it pleads that in 1905 one James Barry, then claiming to own the land in question in fee simple, filed a suit in the circuit court of Chariton county against this defendant to quiet title under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667); that defendant answered, denying title in Barry, asserting it in himself, and praying judgment that he go and recover his costs, which suit resulted in a judgment in favor of defendant, from which judgment no appeal was taken; that that suit was instituted at the instance of the plaintiff in this suit to clear the title to enable Barry to consummate a sale of the land which this plaintiff had already negotiated, and he was fully cognizant of the proceedings and result therein; that after that judgment he took from Barry a deed conveying all the title Barry had to the land. The pleadings and proceeding in the Barry suit are fully set forth in the answer, and the judgment is pleaded as res adjudicata in bar of this suit. Plaintiff filed a motion to strike out all that part of the answer relating to the Barry suit, and the court sustained the motion; defendant saved his exceptions. The point was also well preserved in the motion for a new trial. At the trial the plaintiff traced title from the state to Chariton county, and thence to the First National Bank of Kansas City; then plaintiff offered a deed purporting to be a conveyance of the land from "Walter Johnson, receiver of the First National Bank of Kansas City, Mo.," to John Ross. To this offer defendant objected "because there is no proof of the authority of Walter Johnson, receiver, to make the deed." Plaintiff's counsel replied: "The deed recites the appointment I think that is prima facie." The court overruled the objection, and defendant excepted. Plaintiff then read the deed, and introduced other deeds bringing the title of Ross down to plaintiff, and rested. Defendant offered the record in the Barry Case, already mentioned, with proof as to the plaintiff's knowledge of it, which, on objection of plaintiff, was excluded, and defendant excepted. Defendant then introduced evidence tracing his title from one Thomas Ferguson and wife, and parol testimony tending to show adverse possession for 30 years, and plaintiff in rebuttal offered evidence contra to the adverse possession.

1. We will first consider certain objections respondent makes to appellant's abstract.

a. The motion for new trial and the exception to the overruling of the same are fully set out in the bill of exceptions; the filing of the motion and the order of the court overruling the same are shown by the record proper. That is just as it should be. Respondent is mistaken in supposing that the record proper should contain the motion or the exception. Harding v. Bedoll, 202 Mo., loc. cit. 630, 100 S. W. 638.

b. Respondent also thinks that the abstract does not show that the motion for new trial was filed during the same term the judgment was rendered, but in this also he is mistaken. The abstract shows that the judgment was rendered June 14, 1907, and it also shows that on the same day the motion for new trial was filed, and by agreement of parties was taken up and considered, and was by the court overruled as "appears by record entries made at the term." The abstract does not say in so many words that that was the same term, but it does say it was done by the court on the same day, and so entered of record. That is quite sufficient. The same is true in regard to the objection that the abstract does not show that leave to file a bill of exceptions was given by the court during the same term. The abstract does show it.

c. The point is also made that the abstract does not set out the contents of the affidavit for appeal. The abstract does set out the record entry showing that an affidavit for appeal was filed, and $10 docket fee deposited on the 14th June, and at the same term of court, and the appeal was granted and leave to file appeal bond within 10 days was granted. If respondent thought the affidavit was not sufficient, he could have called the attention of the trial court to it, or he could have brought it here by an additional abstract for our inspection. As it is, we will presume that the trial court examined the affidavit, and found it sufficient before making the order allowing the appeal. State ex rel. Brown v. Broaddus, 216 Mo. 336, 115 S. W. 1018; Elliott v. Delaney, 217 Mo., loc. cit. 26, 116 S. W. 494. The abstract is sufficient

2. Was it error to strike out all that part of the defendant's answer relating to the Barry Case, and sustaining plaintiff's objection to the introduction of that record in evidence? That is the question of chief importance in the case. Respondent contends that the Barry suit amounted only to an action in ejectment, and therefore the judgment was no bar to another ejectment suit between the same parties for the same land. It is true a judgment in a mere ejectment suit is not a bar to another suit in ejectment, because ejectment is an action for...