Kuczma v. Droszkowski

• Decision Date: 31 May 1912
• Citation: 147 S.W. 1000
• Parties: KUCZMA et al. v. DROSZKOWSKI.
• Court: Missouri Supreme Court

147 S.W. 1000

KUCZMA et al. v. DROSZKOWSKI.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. APPEAL AND ERROR (§ 361)—AFFIDAVIT OF APPEAL—AMENDMENT—ORDER NUNC PRO TUNC.

Under Rev. St. 1909, § 2120, providing that omissions due to the default and negligence of the clerk or officer of the court not against right and justice or the matter in the suit, and not altering the issues, shall be supplied and amended by the court where judgment shall be given, or that into which such judgment shall be removed by writ of error, or by appeal, a nunc pro tunc entry by the trial court, which ordered the clerk of the court to attach his omitted jurat to an affidavit for appeal, cures the defect, and perfects the appeal.

2. EVIDENCE (§§ 17, 41)—JUDICIAL NOTICE.

The Supreme Court will take judicial notice of the terms of the circuit court, and as to the date of first Monday in a month, to determine in what term the first day of the month fell.

3. APPEAL AND ERROR (§§ 672, 713)—ABSTRACT OF RECORD—MOTION FOR NEW TRIAL.

Where the filing and overruling of a motion for new trial is not shown by the abstract of the record proper, being only referred to in the bill of exceptions, the bill of exceptions cannot be reviewed, it not appearing that any motion for new trial was had, but the court may consider the appeal upon the record proper.

4. APPEAL AND ERROR (§ 527)—RECORD— SCOPE AND CONTENTS—TRIAL TO COURT—FINDINGS OF FACT.

Rev. St. 1909, § 1972, requiring, in actions tried to the court, separate findings of fact and conclusions at law upon request of the parties, applies only to legal actions, and so findings of fact and separate conclusions of law in an equitable action cannot be considered as part of the judgment, so as to be reviewable on appeal as part of the record proper.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by John Kuczma, as administrator of Thaddus Lubiewski, deceased, and another, against John Droszkowski. There was a judgment for defendant, and plaintiffs appeal; the act being revived against the representatives and heirs of defendant who died after appeal. Affirmed.

This suit to redeem was begun on the 16th of September, 1908, by the administrator and widow of a mortgagor of real estate against the purchaser at a foreclosure sale made on July 6, 1908. The petition alleges that the sum bid at such sale was a grossly inadequate price; that the trustee executed a deed and turned over possession to the defendant on the day of sale; that plaintiffs first heard thereof on the 10th of July, 1908, and tendered defendant the principal and interest and all costs of sale and all legal expenses, and asked to redeem the property, which tender defendant refused; that plaintiffs then gave notice of their intention to redeem, and on the 30th of July thereafter filed a bond as required by law. The answer admitted the purchase by defendant and the possession of the property by him, and denied the other allegations of the petition. The circuit judge found that the allegations of the petition were fully sustained by the evidence adduced on the trial, and filed a memorandum of his findings of fact and conclusions of law, which show that he denied relief to plaintiffs upon the theory that no notice of intention to redeem was given on the day of sale. From that decree plaintiffs appealed to this court. The defendant having since died, it is now revived against his representatives and heirs at law.

L. C. Kingsland, for appellants. William Hilkerbaumer, for respondent.

BOND, C. (after stating the facts as above).

1. It is urged by respondent that no jurisdiction was vested in this court of this appeal for the reason that an affidavit therefor filed in the court below did not have a jurat affixed to it at the time it was filed. This point cannot be sustained. A supplemental abstract filed by appellant discloses that, upon a proper showing in the court below, the clerk of that court was ordered to attach his jurat to the affidavit for appeal in this case on April 1, 1909, by nunc pro tunc entry as of date of the filing of the...