Juden v. Grant

• Decision Date: 03 December 1935
• Parties: CHARLES G. JUDEN, ALEXANDER GIBONEY JUDEN, SALLY VIRGINIA JUDEN REED, AND CHARLES ANDREW JUDEN, RESPONDENTS, v. CLARENCE L. GRANT AND NAT M. SNIDER, APPELLANTS
• Court: Missouri Court of Appeals

88 S.W.2d 231

232 Mo.App. 1

CHARLES G. JUDEN, ALEXANDER GIBONEY JUDEN, SALLY VIRGINIA JUDEN REED, AND CHARLES ANDREW JUDEN, RESPONDENTS, v. CLARENCE L. GRANT AND NAT M. SNIDER, APPELLANTS

Court of Appeals of Missouri, St. Louis

December 3, 1935

Appeal from Cape Girardeau Court of Common Pleas.--Hon. L. L Bowman, Judge.

AFFIRMED.

Judgment affirmed.

J Grant Frye for appellant.

(1) A judgment exists and is valid when rendered by the court although through neglect or failure of the clerk it is not formally written into the permanent records; and the enforcement of the judgment does not depend upon its formal entry if in fact it has been duly rendered. It is the rendition of the judgment that makes it efficacious and not the ministerial act of writing it up. Fontaine v Hudson, 93 Mo. 62, 5 S.W. 692, 694; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146; State ex rel. Green v. Henderson, 164 Mo. 347, 64 S.W. 138, 141; State ex rel. Garvey v. Buckner, 272 S.W. 940, 943; Marsden v. Nipp, 30 S.W.2d 77, 81; Ex Parte Mitts, 278 S.W. 1047; 23 C. J. 318; 34 C. J. 52-53-55. (2) The party in whose favor any judgment, order, or decree is rendered, may have an execution in conformity therewith immediately without awaiting for the clerk formally to enter it upon the records. Fontaine v. Hudson, supra; Section 1152, R. S. Mo. 1929; Rumsey v. Peoples Ry. Co., 114 Mo. 175, 46 S.W. 144, 148; In re Craig, 130 Mo. 590, 32 S.W. 1121, 1122. (3) In a suit for delinquent taxes or in any case where a special execution is issuable on a judgment, the right to the execution follows eo instanti upon the rendition of the judgment. Fontaine v. Hudson, supra; Smith v. Rogers, 191 Mo. 334, 90 S.W. 1150. (4) "It is axiomatic that if a party has a full, complete, and adequate legal remedy, he had no right to equitable relief." Williams v. Walker, 62 S.W.2d 840, 842. (5) Plaintiffs state themselves out of court when they allege that the proceedings they seek to set aside are void on their face, for in such cases the remedy at law would be adequate and ample. McClanhan v. West, 100 Mo. 309, 13 S.W. 674, 676; Janney v. Spedden, 38 Mo. 396, 402; Lenox v. Harrison, 88 Mo. 491; McPike v. Pew, 48 Mo. 525; Barrow v. Davis, 46 Mo. 394; Hopkins v. Lovell, 47 Mo. 102; Jacobs v. Cauthorn, 238 S.W. 443; Overall v. Reunzi, 67 Mo. 403. (6) "Equity will not interfere to prevent a multiplicity of suits, unless the questions involved are of equitable cognizance. The mere fact that there is a community of interest in the questions of law and fact presented by a given controversy, or in the kind and form of relief demanded by or against each of several individuals, will not warrant such interposition." Ballew Lumber Co. v. Mo. P. Ry., 288 Mo. 473, 232 S.W. 1015. (7) If an injunction is granted to stay any judgment or legal proceedings, the injunction should restrain only so much of the recovery or the enforcement as plaintiff shall show himself equitably entitled to be relieved against; and if the injunction should issue to restrain a sale under the tracts of land insufficiently described, it should not have issued as against the tracts adequately described. Section 1505, R. S. Mo. 1929; Wiel v. Richardson, 24 S.W.2d 175. (8) Equity cannot be resorted to to prevent a cloud being cast on the owner's title except in cases where some extrinsic evidence, not shown on the face of the judgment attacked, is necessary to show the equities and injuries involved; and as in this case the whole matter of the validity or invalidity of the descriptions appears on the record, it is patent whether or not the judgment is adequate or is void. Payne v. Daviess County Anns., 126 Mo.App. 593, 105 S.W. 15; Marsala v. Gentry, 232 S.W. 1046; Henman v. Westheimer, 110 Mo.App. 191, 81 S.W. 101; St. Louis-San Francisco Ry. v. Lowder, 138 Mo. 533, 39 S.W. 799. (9) Plaintiffs are not entitled to maintain an injunction to restrain the collection of the taxes unless they have paid or tendered the taxes confessedly due. Overall v. Reunzi, supra; St. Louis-San Francisco Ry. Co. v. Gracy, 28 S.W. 736, 738, 29 S.W. 579, 126 Mo. 472; Porter v. Boyd Paving Co., 214 Mo. 1, 112 S.W. 235. (10) The fact that part of the injunction plaintiffs were not made parties to the tax suit could only affect the validity of the judgment as to those who were made parties and could have no effect whatsoever as to the plaintiffs not made parties, because as to them it was an absolute nullity on its face, and could cast no cloud upon their title and furnish no ground for equitable relief. Fontaine v. Hudson, 93 Mo. 62, 5 S.W. 692, 694-5. (11) An injunction will lie where real estate is being sold under an execution against a person having no interest in such real estate subject to execution, where by such sale a cloud would be put on the title or an irreparable injury to be done to the property, as where land held in bare trust was being sold on an execution against the trustee; but no cloud would be put upon the title of the injunction plaintiffs who were not made a party to the tax proceedings as their title would be unaffected by a judgment enforced against one of their number who was an injunction plaintiff but not a tax case defendant. Section 1519, R. S. Mo. 1929; Gardner v. Terry, 99 Mo. 523, 12 S.W. 888; Payne v. Daviess County Ass'n, 126 Mo.App. 583, 105 S.W. 15; Church v. Hintze, 72 Mo. 363; Charter Co. v. Cummings, 90 Mo. 267, 2 S.W. 397. (12) The plaintiffs in the injunction case did not show any title in themselves, as there was no showing that their grantors ever had any title to convey to them under the deeds introduced in evidence. Fontaine v. Hudson, supra.

Giboney Houck, W. E. Coffer, and Brandom Hope, for respondents.

(1) It is well settled that a cause must be heard in the Appellate Court upon the same theory as that upon which it was tried in the trial court. La Crosse Lumber Co. v. Powell, 247 S.W. 1022, l. c. 1024; Beyer v. Coca-Cola Bottling Co., 75 S.W.2d 642, l. c. 645. (2) Since defendants told the trial court that they were not contesting the issuance of an injunction against the execution of July 8, 1931, and the levy thereunder, defendants' objection thereto on appeal should be ignored. Section 1061, R. S. Mo. 1929. (3) Certainly there is no error in the wording of the injunction affecting the substantial rights of defendants, and therefore there is, in any event, no reversible error. Sections 821 and 1062, R. S. Mo. 1929. (4) It also seems to respondents that none of the other questions raised by appellants are at issue on this appeal, under the pleadings and record herein. State ex rel. Grant v. Juden, 50 S.W.2d 702, 705. (5) The descriptions contained in the petition, and the judgment as corrected on December 29, 1932, are so indefinite as not to describe any land whatever. Western v. Flanagan, 120 Mo. 61; Lowe v. Ekey, 82 Mo. 286; State ex rel. v. Burrough, 174 Mo. 700; State ex rel. v. Sanford, 127 Mo. 368, 372; State ex rel. v. Wabash Ry. Co., 114 Mo. 1; State ex rel. v. Hamilton, 293 S.W. 378; State ex rel. v. Linney, 192 Mo. 49; O'Day v. McDaniel, 181 Mo. 529; Ross v. Ross, 83 Mo. 100. (6) It is provided by statute that proceedings by injunction to stay a judgment shall be had in the county where the judgment was rendered. Section 1501, R. S. Mo. 1929. The remedy by writ of injunction or prohibition shall exist in all cases where an irreparable injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever in the opinion of the Court an adequate remedy cannot be afforded by an action for damages. Section 1519, R. S. Mo. 1929. (7) This injunction suit was a direct attack on the execution of July 8, 1931, and the levy thereunder; but a judgment for taxes, to be safe from even a collateral attack, must on its face or upon the whole record appear to be lawful. Cooper v. Gunter, 215 Mo. 558. (8) An injunction to restrain a sale under execution is within the meaning and intent of the statute. Carthage Nat. Bank v. Poole, 160 Mo.App. 133, 142. (9) The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created. It is the true policy of the courts to prevent litigation. Gardner v. Terry, 99 Mo. 523, 526. That the proceedings were void, and that plaintiffs may have had a legal remedy, do not prevent plaintiffs from having equitable relief. Verdin v. City of St. Louis, 131 Mo. 26, l. c. 79, 100; Pocoke v. Peterson, 256 Mo., l. c. 518, 519.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.

This is a suit for an injunction which was brought by plaintiffs, the owners of certain real estate located in Cape Girardeau county, to restrain and enjoin defendants, in their respective capacities of collector of revenue and sheriff of said county, from further attempting and proceeding to sell plaintiffs' said real estate under a certain special execution issued upon a judgment theretofore rendered by the Cape Girardeau Court of Common Pleas against the plaintiffs herein in a suit for delinquent taxes. The appeal is by the defendants from the judgment of the court awarding plaintiffs a permanent injunction.

Perhaps the issues now involved on this appeal will be made more easy of comprehension if we state the history of the case in chronological order.

On December 31, 1928, the county collector instituted an action against the respondents herein as the joint owners of seven separate tracts of land in Cape Girardeau county to collect certain alleged delinquent taxes upon the same. The real estate was described in the petition by official survey, and in due time respondents filed their answer in said suit admitting the...