Murphy v. Barron

• Citation: 286 Mo. 390,228 S.W. 492
• Decision Date: 30 December 1920
• Docket Number: No. 21909.,21909.
• Parties: MURPHY et al. v. BARRON.
• Court: Missouri Supreme Court

228 S.W. 492

286 Mo. 390

MURPHY et al. v. BARRON.

No. 21909.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Motion for Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Joseph Murphy and another against William N. Barron. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions to enter judgment for defendant.

Arnot L. Sheppard, of Poplar Bluff, for appellant.

Henson & Woody, of Poplar Bluff, for respondents.

JAMES T. BLAIR, P. J.

This is a second appeal (Murphy v. Barron, 275 Mo. 282, 205 S. W. 49) in a suit to quiet title and in ejectment which respondents instituted in 1914. As appears from the record and the former opinion, Joseph Murphy owned the land prior to 1901. In that year a suit was commenced against him for back taxes on the tract here in question and service obtained. The case was not tried until June, 1903. Murphy was then in the penitentiary. In October, 1903, the land was sold under the tax judgment to Green, who, three days later, conveyed to the present appellant. After his release in 1905, Murphy took possession of the tract and retained it until 1914, when he was ousted under a judgment in an action this appellant had brought against the Baurtons in 1904 as more fully appears from the former opinion. Murphy had conveyed the tract to Baurton in 1902, and Baurton reconveyed to Murphy and his wife, these respondents, in 1904. August 11, 1911, the Butler County Railway began proceedings to condemn a right of way across the tract and made the present respondents and appellant and one Horton defendants thereto alleging that all claimed the land and that it did not know which had title. September 18, 1911, commissioners were appointed who qualified, and on September 29, 1911, filed their report, in which they "assessed as damages to the owners" (of the tract in suit) "to wit, William N. Barron, M. C. Horton or Joseph Murphy, the true owner hereof to be declared and decreed by the court upon the trial of this cause, for said strip taken, the sum of $100." On March 5, 1912, Murphy filed in that case a motion to require the Butler County Railroad to pay into the court the amount of the award "to the end that said defendants may interplead for same." This motion was overruled on March 8, 1912, and in the order the court granted Murphy "leave to answer or plead on or before the first day of the next regular term of this court, to which this cause is continued."

Thereafter Barron, the present appellant, and Horton, filed a pleading in the nature of an interplea admitting they claimed title to the tract, alleging they were the owners . thereof, denying that the Murphys had any interest therein, and praying a decree and order that the damages awarded by the commissioners be directed to be paid to them, Barron and Horton. Joseph and Sarah Murphy, the present respondents, also filed in those proceedings their plea in the nature of an interplea in which they alleged they were the owners of the land affected and entitled to the $100 awarded by the commissioners as damages for the taking of the right of way across it. They denied Barron and Horton had any interest in the land, and prayed judgment "in the sum of $100 and costs." The court heard the evidence on these conflicting claims, found that Barron was the owner of the land, that he was entitled to the $100 awarded as damages for the taking of the right of way, adjudged that Joseph and Sarah Murphy had no title to or interest in or to the land or to the $100 damages awarded by the commissioners, and "that upon the payment into court by the plaintiff of the sum aforesaid that the said W. N. Barron be entitled to the said sum of $100" and adjudged the costs of the proceeding against the Murphys. From this judgment Joseph and Sarah Murphy appealed to the Springfield Court of Appeals, where the judgment was affirmed. Railroad v. Barron et al., 173 Mo. App. 365, 158 S. W. 872. In that proceeding and on the issue concerning the right to the $100 fund, the evidence was confined to the question of title to the land. In this case appellant called Wm. McGuire, circuit clerk of Butler county who testified he was circuit clerk at the time of the trial of the issues between respondents and appellant and Horton on May 2, 1912. He produced a receipt which reads as follows:

                        "Poplar Bluff, Mo., May 23, 1912
                

"Received of William McGuire, circuit clerk of Butler county, Missouri, the sum of one hundred ($100.00) dollars, payment in full for a strip of ground taken for railroad right of way by the Butler County Railroad Company, a corporation, which strip of ground is more particularly described in the report of the commissioners filed in this court on the 29th day of September, 1911; and the above amount being the amount awarded by said commissioners.

                                  William N. Barron
                                     "By Earl V. Walker."
                

McGuire testified he had no record of the receipt of this sum from the Butler County Railroad Company; that he paid it to Walker, Barron's agent, on the date named in the receipt, and took the receipt for it; that funds of the kind did not go upon his abstract of fees collected, but were listed by him and kept in a separate trust fund account; that this list was revised and rewritten as payments were made from it and old lists then destroyed; that he did not pay it out of his own money, but that the sum came to him from the Butler County Railroad; that he had no recollection when the money was paid to him. Appellant testified that the Butler County Railroad did not pay the $100 award to the circuit clerk until after May 2, 1912, but that it was paid in before May 23, 1912, when he received the money. Other facts appear from the opinion on the former appeal. On the second trial the Murphys had judgment, and this appeal followed.

I. On the former appeal in this case it was held, among other things, that the Butler circuit court had no jurisdiction to try the issues made by the interpleas of respondents and appellant and Horton in their contest for the damages awarded the owners of the land involved in that and in this case, and that, consequently, the trial and judgment in that proceeding could constitute no obstacle to the assertion by respondents against appellant of title in this case. Appellant contends the decision on the former appeal was wrong on the record then before this court, is wrong for the same and additional reasons on the present record, and that the question should be re-examined. Respondents insist the holding on the former appeal was such a determination of the question that it is not now open to question.

(1) The decision on the former appeal is not res adjudicata in the full sense. Mangold v. Bacon, 237 Mo. loc. cit. 517, 141 S. W. 650. It is not a judgment from which the court cannot legally depart on this second appeal in the same case. Under the decisions in this state it was not an absolute and final determination of ail matters decided of such inexorable force that the court must adhere to it on this appeal at all events and whether it be right or wrong. The general rule is that matters decided on one appeal will be considered settled on a second appeal in the same case, unless exceptional circumstances call for a re-examination of them. A discussion of the nature of the exceptional circumstances which warrant a reexamination of questions decided on a former appeal is found in the case above cited. It follows that the decisions cited by respondents (Donnell v. Wright, 147 Mo. loc. cit. 647, 49 S. W. 874 and the like) in which this court considered the effect in a second action of a previous and final adjudication of the same matter are not in point.

(2) Respondents also rely upon the rule announced in McLure v. Bank, 263 Mo. loc. cit. 136, 172 S. W. 336, and cases cited. Those cases deal with the effect of a reversal of a judgment and remandment of a cause with specific directions to the trial court as to the judgment to be entered or the course to be pursued. In such cases it becomes the duty of the trial court to do the things directed. The "mandate is in the nature of a special power of attorney" (Keaton v. Jorndt, 259 Mo. loc. cit. 190, 168 S. W. 734), and the trial court has no power "to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed" (Stump v. Hornback, 109 Mo. loc. cit. 277, 18 S. W. 37; Chouteau v. Allen, 74 Mo. loc. cit. 59), In case directions are given, it is its duty "to do those things, and those only, which it is directed to do by the mandate contained in the judgment" (Keaton v. Jorndt, supra), which in that case included a direction to enter judgment with respect to designated parties and to try a specified issue. If no directions are given on a first appeal and there is "a simple reversal and remanding," the rule does not apply. Chouteau v. Allen, supra. In the instant case the judgment was, on the first appeal, reversed and the cause was "remanded to the Butler circuit court for further proceedings in accordance with this opinion." Murphy v. Barron, 275 Mo. loc. cit. 297, 205 S. W. 49. This is no more than a "simple reversal and remanding." The words "for further proceedings in accordance with this opinion" added nothing which would not have been necessarily implied had they been omitted. Every case which is remanded is remanded "for further proceedings," whether those words are used or not, and such further proceedings are expected to be "in accordance with" the opinion rendered. That they may be is perhaps one of the purposes of the requirement that opinions must be in writing. The words used do not import a direction of specified things, which is necessary to bring the case within the rule concerning reversals and remandments "with directions." In Quisenberry v. Chenault, 97 S. W. 803, 30 Ky....