Mengel v. Leach

• Decision Date: 15 December 1920
• Docket Number: No. 21270.,21270.
• Citation: 226 S.W. 883
• Parties: MENGEL v. LEACH.
• Court: Missouri Supreme Court

226 S.W. 883

MENGEL v. LEACH.

No. 21270.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Appeal from Circuit Court, Butler County; John A. Gloriod, Special Judge.

Action by Benjamin J. Mengel against W. A. Leach, in which defendant filed a cross-bill. Judgment and decree for defendant, and plaintiff appeals. Affirmed.

On the 16th day of March, 1916, appellant instituted an action in ejectment against respondent, by which he sought to recover the possession of lot 33 in Ruth's subdivision of lots 16, 17, and 18 of Miller's addition to the town (now city) of Poplar Bluff, Mo., in the circuit court of said county.

Respondent answered with a general denial, a cross-bill to quiet title, and a plea of estoppel.

The lots claimed by respondent are 34 and 35 and are described by metes and bounds as follows:

"Commencing at the northeast corner of Ninth and Ash streets, in Poplar Bluff, Mo., as said corner is now actually located; thence east along the north line of Ash street 80.5 feet; thence north parallel with the east line of Ninth street 124 feet; thence west parallel with the north line of Ash street 80.5 feet to the east line of Ninth street, as established by the Hypolite survey; thence south along the east line of Ninth street 124 feet to the place of beginning."

Many years ago a survey called the "old survey" was made of this portion of the town, but 10 or more years ago the city made a new survey called the "Hypolite survey," for the reason that the old survey was erroneous. The controversy here arises over which of these surveys should be applied to the facts of this case.

John Mengel, deceased, was the common source of title of the lots in controversy and a number of others. After his death all of the lots were sold at partition sale; appellant bought lot 33, and respondent bought lots 34 and 35.

At the April term, 1918, of said court, on Monday, the twenty-ninth day thereof, said cause was tried before Hon. John A. Gloriod, special judge, vice Hon. J. P. Foard, the regular judge, who was absent from the state. At the end of the year 1918 Foard's term of office expired, and he was succeeded on the bench by Hon. Almon Ing January 1, 1919.

Judgment and decree went for respondent for the lots described, in accordance with his prayer to quiet title set up as aforesaid in his answer.

After the trial of the cause at said April term, 1918, and after it had been adjourned until court in course, three additional terms of said court intervened, viz. the July and October terms, 1918, and the January term, 1919, prior to the filing of the bill of exceptions on February 17, 1919. The ball of exceptions was signed (as shown by the abstract of the record) by sand special judge alone. (Italics ours.)

Appellant's abstract inadvertently misstates the facts in at least two important particulars: (1) In describing the lots as set forth in respondent's answer he makes one of the lines run west (which would not touch the property) instead of east, as it should have been; and (2) that the judgment and decree was rendered on Monday, April 29, 1919, which was one year after it was rendered as shown by the short-form transcript filed in this court by appellant on May 11, 1918. Respondent filed an additional abstract of the record correcting these errors and making it agree with the facts.

W. H. Meredith and E. R. Lentz, both of Poplar Bluff, for appellant.

Ed. L. Abington and Sam M. Phillips, both of Poplar Bluff, for respondent.

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

1. Respondent makes the point that the signature of Special Judge Gloriod was not sufficient to validate said bill of exceptions after the term of court at which the case was tried before him had passed and after the successor of the regular judge had been elected and qualified.

The special judge who tried the case is presumably familiar with the facts and as to what occurred during the progress of the trial. He is thus in better position to pass upon the correctness of the bill than a stranger to the proceedings. In our opinion, a special judge who tries a case may continue to act and pass upon the bill of exceptions after the term has elapsed, and although the regular judge newly elected may be present. This is true whether the special judge be elected to hold a term or try a single case. In either instance he continues to act until the case is finally disposed of, as no provision has been made in our law to the contrary. In our opinion, section 2032, R. S. 1909, does not apply to a case like the one under consideration, as the special judge never went out of office, but continued to perform a part of the duties devolving upon him when elected by signing the bill of exceptions.

The authorities cited as sustaining respondent's contention are Berry v. Leslie, 131 Mo. App. 236, 110 S. W. 685; Coons v. Coons, 178 S. W. 484; State ex rel. v. Flick, 179 Mo. App. 236, 166 S. W. 893. We hold that the above cases, in so far as they are in conflict with the views heretofore expressed, should...