Johnston v. Ragan

• Decision Date: 29 June 1915
• Parties: MAGDALINE C. JOHNSTON v. JOSEPHINE G. RAGAN et al., Appellants
• Court: Missouri Supreme Court

178 S.W. 159

265 Mo. 420

MAGDALINE C. JOHNSTON v. JOSEPHINE G. RAGAN et al., Appellants

Supreme Court of Missouri

June 29, 1915

Appeal from Jackson Circuit Court. -- Hon. R. B. Middlebrook and Hon. W. A. Powell, Judges.

Affirmed.

William C. Forsee for appellants.

(1) Judge Park was without power to hear the case. (a) The suit was filed at Independence, where Judge Powell presided. The record does not show that Judge Powell was "sick, absent or from any cause" was unable or disqualified to try the case. On the contrary, the record shows that he was present and holding court. Judge Park was, therefore, without power to hear the evidence, or to take any other step in the case. R. S. 1909, secs. 3960, 3967, 1927, 1928; Laws 1905, p. 123 sec. 7; Laws 1907, p. 202, sec. 5, and p. 203, sec. 1; Ladd v. Forsee, 163 Mo. 509; Bank v Graham, 147 Mo. 250. (b) In Jackson county, as in St Louis, each judge, after a case has been assigned to him, is, as to that case, the sole judge of the court. Two of the judges cannot at the same time or place hold the court, nor can two of them try the same case. Here the record entries show that Judge Park heard the evidence, and Judge Powell rendered the judgment. R. S. 1909, chap. 35, art. 8; Haehl v. Railroad, 119 Mo. 337; State ex rel. v. Eggers, 152 Mo. 487; Goddard v. Delaney, 181 Mo. 581; Vaullaire v. Vaullaire, 45 Mo. 602; Telford v. Ramsey, 43 Mo. 417. (2) There is no evidence whatever in the record to show that respondent had any right, title, interest or estate to the land in question. The court should, therefore, have sustained appellants' demurrers to the evidence. (3) Respondent failed to plead payment, new promise, etc. (a) The notes described in the deed of trust to Witten, and the deed of trust itself were, ten years after its date prima-facie barred by the statute. Appellants pleaded the ten year Statute of Limitation. If payments had been made, or if anything else had accrued which in effect avoided the statute, it devolved upon respondent to plead it by reply. R. S. 1909, sec. 1809; Wood on Lim. (1 Ed.), secs. 7, 81; 25 Cyc. 1415, 1416, 1419, 1420, 1422; Sanders v. Chartrain, 158 Mo. 361; Zoll v. Carnahan, 83 Mo. 41; Moore v. Granby, 80 Mo. 91; Ferguson v. Dalton, 158 Mo. 323; Rivers v. Blom, 163 Mo. 448; Young v. Glasscock, 79 Mo. 576; Stevenson v. Smith, 189 Mo. 466; Cunningham v. Rausch, 157 Mo. 341; Hunt v. Searcy, 167 Mo. 184; Campbell v. Laclede Co., 84 Mo. 375. (b) The notes and deed of trust showed upon their face that they were barred on May 10, 1905. Respondent by failing to plead in reply such facts as tolled the statute, confessed the bar. Capen v. Goodrow, 51 Vt. 106; Jessup v. Effing, 66 Ga. 334; Davis v. Davis, 98 Me. 135; Diehlman v. Bank, 8 S.D. 263; 25 Cyc. 1425. (c) "Where the cause of action is prima facie barred by limitations, the burden is not on defendant, even though he pleads the facts on which the bar is sought to be established." 25 Cyc. 1426, 1428; 8 Ency. Ev., pp. 320, 321, 322, 324; Easter v. Easter, 44 Kan. 151. (4) The indorsements on the Ragan notes were not admissible until it was first shown on what date they were made, and that on said dates payments were actually made. R. S. 1899, sec. 4294; R. S. 1909, sec. 1909; Goddard v. Williamson's Admr., 72 Mo. 131; Haber, Admr., v. Schwyhart, 39 Mo.App. 303; Briscoe v. Huff, 75 Mo.App. 290; Gardner v. Early, 78 Mo.App. 350; Hernden v. Lewis, 175 Mo. 116; Elsea v. Pryor, 87 Mo.App. 157. (b) Even if Ragan in person made the endorsements, they were not for that reason admissible. They were neither an "acknowledgment" of, nor a "promise" to pay the debt, nor were they "subscribed by the party chargeable thereby." R. S. 1889, sec. 4294; Wood on Lim. (1 Ed.), secs. 94, 92; Bayley v. Ashton, 12 Ad. and E. 493; Hyde v. Johnson, 2 Bing. (N. C.) 776; Woodridge v. Allen, 12 Metc. 470; Palmer v. Butler, 36 Iowa 576; Wells v. Hargrove, 117 Mo. 563; Chambers v. Rubey, 47 Mo. 99; Kirkbride v. Gash, 34 Mo.App. 256; Mastin v. Branham, 86 Mo. 640. (c) Exhibit 20 was neither an "acknowledgment" of the debt, nor a "promise" to pay it. Monroe v. Herington, 110 Mo.App. 516; Corbin v. Brockmeyer, 84 Mo.App. 653. (d) An alleged waiver of the statute must be pleaded as any other estoppel. 25 Cyc. 1416. (e) There being no plea of any facts tolling the statutes, no evidence of such facts was admissible, and the court erred.

R. H. Field for respondent.

(1) Appellants having been notified of respondent's motion to amend their bill of exceptions, and having appeared thereto and saved no exception to the order amending their bill of exceptions, it must be presumed that the court then properly ordered inserted, in appellants' bill of exceptions the deed from Witten, trustee, to respondent, as having been offered in evidence at the trial of this cause. Bank v Allen, 68 Mo. 474; Harlan v. Moore, 132 Mo. 483. The court had a right to so amend appellants' bill of exceptions. R. S. 1909, secs. 1850, 2028. On the stenographer's notes showing said deed was offered in evidence on the trial of this cause, as stated in said order. Ross v. Railroad, 141 Mo. 390; West v. Burney, 71 Mo.App. 271. And also for the other reason stated in the order of the court, to-wit: because appellants' bill of exceptions shows that both appellants and respondent treated the said deed as in evidence in the case, both in the evidence and in the declarations of law asked by them. Hayden v. Alkire Groc. Co., 88 Mo.App. 241; Harding v. Bedoll, 202 Mo. 635; Reed v. Colp, 213 Mo. 584. (2) It therefore follows, if appellants' bill of exceptions, filed June 27, 1910, was lawfully a part of the record, then the said amendment made thereto by the order of the court, December 27, 1912, became a part of said bill of exceptions, the same as if made, June 27, 1910, the day appellants filed said bill of exceptions. Dorrance v. Dorrance, 242 Mo. 625; Gamble v. Daugherty, 71 Mo. 601. (3) Appellants' willful omission of this deed in their abstracts filed in this court, calls for a firm enforcement of rule 16, and respondent's motion to dismiss the appeal should be sustained. Brand v. Cannon, 118 Mo. 595; Nolans v. Johns, 126 Mo. 167; Eli v. Coontz, 167 Mo. 371. (4) Respondent's filing of an additional abstract of the record, supplying the amendment made to appellants' bill of exceptions omitted in appellants' abstract, should not be held as a waiver of appellants' motion to dismiss the appeal or as an estoppel of respondent to make this motion, because by rule 11, respondent was required to file the additional abstract within a given time or submit to the false condition of the record, thrust upon her by appellants' abstract. Donnell v. Wright, 147 Mo. 648; Bailey v. Kansas City, 189 Mo. 504. (5) Appellants' abstract wholly omitting the record entry of February 21, 1910, appellants cannot complain that the record of that day does not show Judge Park was authorized to hold the court that day. Pullis v. Summerville, 218 Mo. 633. (6) From beginning to end of these proceedings no exception was taken by appellants to Judge Park's acting as the court in this cause and for that reason, his right, as one of the judges of the circuit court of Jackson county, to act as the court in this cause, cannot be questioned by appellants. McCune v. Goodwillie, 204 Mo. 333; Collier v. Lead Co., 208 Mo. 264; Stearns v. Railroad, 94 Mo. 321; Rule 9 of the court. Respondent's abstract of the record sets out the record entry of Judge Powell's absence and inability to attend the court and his request to Judge Park to sit and hold the court in his stead, and Judge Park's holding the court, February 21 and 23, 1910, omitted in appellants' abstract. Judge Park was therefore the lawfully constituted court at the trial of this cause, at Independence. State ex rel. v. Allen, 235 Mo. 298; State ex rel. v. Williams, 136 Mo.App. 330. But, if the record were silent, as to the reason for Judge Powell's absence and Judge Park's presence as the court, Judge Park being one of the judges of the circuit court, his presence as the court would be presumed rightful and legal. Rigs v. Owen, 120 Mo. 176; State v. Newson, 129 Mo. 154; Gates v. Tusten, 89 Mo. 13; Danwalter v. Railroad, 115 Mo.App. 577; State v. Hunter, 171 Mo. 440. And, Judge Park having lawfully held the court and heard the evidence in this case on February 21 and 23, 1910, as shown by the record entries, he had a right to sit again as the court and to render the finding and judgment in this case, on March 5, 1910, though Judge Powell may also have held the court on that day in other cases. State ex rel v. Williams, 136 Mo.App. 330; State ex rel. v. Allen, 235 Mo. 298. The court had a right and it was its duty to make the nunc pro tunc entry. Freeman on Judg., sec. 63; R. S. 1909, secs. 1851, 2120; Turner v. Christie, 50 Mo. 145; Clark v. Railroad, 242 Mo. 570; Buchanan v. Louisiana Purchase Exp., 245 Mo. 337. (7) Respondent was required to show only the better title, to entitle her to the decree adjudging her title to the real estate in controversy, as against appellants. Graton v. Land & Lumber Co., 189 Mo. 322; Charles v. White, 214 Mo. 211; Gage v. Cantwell, 191 Mo. 698. (8) The foreclosure of a deed of trust in or out of court is not barred, though suit on the note may be barred, unless the land be held in adverse possession against the same, and no adverse possession will be presumed as to the possession of mortgagor and those claiming under him. Choteau v. Burlando, 20 Mo. 482; Booker v. Armstrong, 93 Mo. 49; Atchison v. Pease, 96 Mo. 567; Gardner v. Terry, 99 Mo. 523; Benton Co. v. Czarlinsky, 101 Mo. 275; Chouteau v. Riddle, 110 Mo. 366; Ivy v. Yancy, 129 Mo. 501. Mrs. Johnston's redeeming the lot in controversy from tax sales on request of Stephen C. Ragan, shows he...