McClannahan v. Smith
| Decision Date | 31 October 1882 |
| Citation | 76 Mo. 428 |
| Parties | MCCLANNAHAN v. SMITH, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.
AFFIRMED.
M. D. Trefren for appellant.
This is an action of ejectment for lot 13, block “H,” in Ranson & Tally's addition to the City of Kansas. The lot in controversy was, with other property, set off to Amanda E. Gaines in a suit in partition, brought by her and her husband and one Ranson, against a number of persons who were tenants in common with them of said lot and a large amount of other property, all of which was divided without sale. In the final judgment in partition, which was rendered in January, 1873, there was no judgment for costs. There was a direction in the judgment that the attorney's fee allowed by the court should be taxed as costs, but that was all. In March, 1873, Amanda E. Gaines and her husband sold the lot sued for to Mittie E. Benton, and in July of the same year, Mittie E. Benton and her husband sold and conveyed it to the plaintiff. In January, 1875, a judgment nunc pro tunc was rendered in favor of the defendants and against the plaintiffs for all the costs, and also in favor of the plaintiffs against each of the defendants for his proportional share of the costs, and execution was ordered to issue accordingly. On June 4th, 1875, the lot in controversy was sold under an execution issued on the 10th day of April, 1875, under the nunc pro tunc judgment against the plaintiffs, and the defendant Gill became the purchaser.
The question is, which has the better title, the plaintiff or the defendant
Under the judgment rendered in 1873 no lien on the land was created in favor of any one, and no execution could issue on said judgment. A fee bill might have issued for the costs, if they had not been paid by the petitioners in the first instance, as required by section 22, 1 Wagner's Statutes, page 345; but even if a fee bill had issued, and if under section 1 of the act in relation to fees, (1 Wag. Stat., p. 618,) such fee bill could have been levied on land, still it would not have been a lien on the lot set off to Mrs. Gaines until it was levied. 1 Wag. Stat., p. 607, § 23. At the time the plaintiff purchased, therefore, there was no judgment which was a lien on the land in controversy, nor was there any lien by reason of the levy of a fee bill, and the plaintiff could at most be charged with notice only of the fact that Mrs. Gaines, through whom she claims title, was subject to have a fee bill issued against her for the costs.
The validity of the nunc pro tunc judgment cannot be assailed in this proceeding, as it recites on its face facts sufficient to authorize it; but it is well settled that such a judgment cannot be made to operate to the prejudice of the rights of third parties acquired in good faith between the time of the rendition of the original judgment and the entry of the judgment nunc pro tunc. Hays v. Miller, 1 Wash. Ter. 163; Galpin v. Fishburne, 3 McCord 22; McCormick v. Mellick & Co., 36 Ill. 114; Acklen v. Acklen, 45 Ala. 609; Tidd's Prac., 933.
Parties are not bound to take notice of the judge's minutes, or the...
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...in the present collateral proceedings? We think not. The judgment upon its face recites facts sufficient to authorize it. In McClannahan v. Smith, 76 Mo. 428, where the question was in issue, we said: " The validity of the nunc pro tunc judgment cannot be assailed in this proceeding, as it ......