Martin v. Castle

• Decision Date: 31 May 1904
• Citation: 81 S.W. 426,182 Mo. 216
• Parties: MARTIN v. CASTLE et al.
• Court: Missouri Supreme Court

81 S.W. 426

182 Mo. 216

MARTIN v. CASTLE et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

JUSTICES—ACTIONS—VENUE—SUMMONS—RETURN — AMENDMENT — APPEAL — BILL OF EXCEPTIONS — IDENTIFICATION — CERTIFICATION —ABSTRACTS.

1. Where, on an appeal, the record proper showed that at a regular term of the circuit court defendants presented a bill of exceptions, which was found correct, was allowed, signed, sealed, and ordered filed, and made a part of the record, together with a recital of the filing, and the original bill, transmitted under order of the Supreme Court, showed that it was duly signed by the trial judge and was filed, it was properly identified and authenticated.

2. Where a case is appealed under Rev. St. 1899, § 813, permitting the appellant to make his own abstract, such abstract need not be authenticated by the clerk, but is conclusively presumed to be true, unless challenged by a counter abstract, as authorized by such section.

3. Where an appeal is taken in the short form, and an abstract prepared by the appellant, as authorized by Rev. St. 1899, § 813, it is sufficient that the abstract contains a recital of the substance of the various exhibits and entries in the case, without a verbatim copy thereof.

4. Under Rev. St. 1899, § 3839, providing that suits before justices of the peace shall be brought before some justice of the township in which defendants or one of them resides, or in an adjoining township, where a suit before a justice was in fact brought in a township adjoining that in which defendant resided, but the constable's return on the summons failed to show that the townships were adjoining and in the same county, it was proper for the justice to permit the constable to amend his return, so as to show such fact, on notice to defendant.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by John F. Martin against Lydia V. Castle and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Booher & Williams, E. S. Castle, Chas. L. Simmons, and Vinton Pike, for appellants. Dickson & Dickson, W. G. Hine, Chas. C. Crow, and Eastin & Eastin, for respondent.

BURGESS, J.

This is a suit by plaintiff against the heirs of his deceased wife, Mary E. Martin, who was seised during her coverture with plaintiff of an interest in the lands described in the petition, which were partitioned after her death, and 148½ acres of land involved in this litigation, with other lands, were allotted to her heirs; but as to all other lands, except said 148½ acres, plaintiff disclaimed any interest therein at the trial. The plaintiff and his wife, Mary, during their coverture, borrowed large sums of money and executed their notes to secure its payment. Several of these notes were unpaid at the time of her death on June 5, 1887. These notes were assigned to E. S. Castle, Charles F. Booher, and Isaac R. Williams, who obtained three several judgments upon them against plaintiff before a justice of the peace of Nodaway township, in Andrew county. Executions were issued by the justice and nulla bona returns made, transcripts were filed in the office of the clerk of the circuit court, executions issued thereon, and all the right, title, and interest of plaintiff in said lands, including the 148½ acres in suit, sold and purchased by Lydia V. Castle, Martha Caron, Philip N. Brown, Asa Roy Martin, and Samuel F. Brown, and a deed in due form of law was made to said purchasers by the sheriff. The grantees in the sheriff's deed are in possession of the lands through their tenant.

The purpose of this suit is to recover possession of the land, claiming an estate by curtesy therein. The cause was tried upon his third amended petition. The petition contains two counts. In the first count he says that his notes were purchased by Castle and Booher and Williams nominally, and for the use and benefit of the defendants, who purchased at the execution sale; that in order to prevent bidding they represented that the plaintiff had no interest in the lands to be sold; that the notes were given for debts of Mary E. Martin, and the money used to improve her land; and that by the means above stated they did prevent bidding at the sale of said lands, and caused the same to be sacrificed. It is also alleged that the defendants caused an execution on another judgment obtained by them against plaintiff to be levied on these lands, and the lands advertised for sale, whereby it is claimed defendants are estopped to claim any title under the former execution sales.

In the second count it is alleged that the three judgments obtained before the justice of the peace were void, because suits were not brought in a township in which plaintiff resided, but were brought in Nodaway township, and service of process had in Rochester township, and it nowhere appears in the record that Nodaway and Rochester townships adjoined. It also alleges that Booher, Castle, and Williams were not the real parties in interest in said judgment, but that they were agents and attorneys of the defendants, and were acting for them in obtaining said judgments and in the execution thereon. The answer admits the marriage of Mary E. Martin, the birth of issue, that William is the curator of Asa Roy Martin, and that Booher, Williams, and Castle obtained judgments against the plaintiff, and under them had the land in suit levied upon and sold, and that the sheriff made the purchasers a deed therefor. It further alleges that at the sheriff's sale plaintiff, well knowing the title he had in said real estate, and the fact that the same was about to be sold, stood by at said sale, made no objection thereto, saw the property sold, and received the benefit of the credit of the purchase price upon the judgments against him, whereby he is estopped from asserting that the judgments, executions, or sale were in any way informal, irregular, or void. The answer of the defendants by the way of cross-bills sets forth that their father, Francis M. Brown, died possessed of personal property worth $7,000; that said property came into the possession of Mary E. Martin, and was held by her in trust for said defendants, who were heirs of said Francis M. Brown, and that she turned over said property to the plaintiff as trustee for said heirs; that at the time of said marriage Mary E. Martin was possessed of $5,000 of personal property, of which said plaintiff took possession upon said marriage without the written assent or permission of said Mary E. Martin; that administration was had upon the estate of said Mary E. Martin, but no account was taken of the said $5,000; that the plaintiff has converted all of said moneys to his own use and refuses to account therefor. The answer prays that plaintiff be required to account for said moneys and for proper relief in respect thereto.

To this part of the answer plaintiff demurred, on the ground "that the demands are in favor of the estates of Mary E. Martin, deceased, and Francis M. Brown, deceased, and that defendants have no legal capacity to plead the same, or to maintain any action at law or in equity therefor against the plaintiff." Upon the pleadings and proofs the court rendered a decree for the plaintiff as prayed, setting aside the sheriff's deed, and gave him judgment for the recovery of the land and damages to the amount of $1,197.50. On the same day all the defendants, except Asa Roy Martin, filed a motion for a new trial, which was overruled, and, severance being granted, they appealed. In due time defendants presented their bill of exceptions to the judge, in which they attempted to save all adverse rulings of the court upon all matters of exception, which was signed by him; but several objections are made to it by plaintiff, and it is necessary to pass upon these objections in the first instance, in order to determine whether the bill and the matters preserved thereby can in fact be determined upon this appeal, for, if not, then there is nothing before this court for review except the record proper.

It is said by plaintiff that the bill of exceptions is not properly authenticated or identified, and, if this be true, nothing therein contained can be considered by us on this appeal. The record proper shows that at the regular November term, 1891, of the circuit court in which the cause was tried, and on the 21st day of said month, the following entry was made in said cause on the record of said court, to wit: "And now again come the said defendants and present a bill of exceptions, which, being found to be correct, is allowed, signed, sealed, and ordered to be filed and made a part of the record, and said bill of exceptions is now here filed." This would seem of itself to be sufficient to identify the bill and show that it was duly filed; but the original bill was transmitted to this court by the clerk of said circuit court, in pursuance of the order of this court, and it shows that it was duly signed by the trial judge, and bears upon its cover the following indorsements, to wit: "Martin v. Castle et al. Bill of Exceptions. Filed Nov. 21st, 1901. C. E. Stevenson, Clerk"—thus showing that the bill was allowed and signed by the judge, ordered to be filed, and was filed by the order of court. In addition...