Norton v. Lynds
| Citation | 24 S.W.2d 183 |
| Decision Date | 27 January 1930 |
| Docket Number | No. 16797.,16797. |
| Parties | NORTON v. LYNDS et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jackson County; Brown Harris, Judge.
"Not to be officially published."
Action by George P. Norton against Lucinda Lynds and another, executors of the estate of John H. Lynds, deceased. The action was commenced in the probate court, wherein plaintiff recovered judgment for $2,500, but on appeal to the circuit court plaintiff recovered a judgment for only $500, and he appeals. Affirmed.
George P. Norton, of Kansas City, in pro. per.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, for respondents.
This cause, arising in the Probate Court, is to recover for legal services alleged to have been performed by the plaintiff at the request of one John H. Lynds, during his lifetime. There was a judgment in favor of plaintiff in the Probate Court in the sum of $2500.00. Defendants appealed. In the Circuit Court there was a verdict and judgment in favor of plaintiff in the sum of $500.00 and he has appealed.
The defendants are the executors of the will of John H. Lynds. The claim for services was divided into three parts. The first part covered services rendered between March 27th, 1926, and May 18th of that year in which $1,750.00 was asked. This claim arose out of the arrest of deceased's daughter-in-law for disturbing his peace. Deceased had deeded a house and lot to his son and daughter-in-law upon which the two later placed a mortgage and could not make the payments. Deceased "took it back and paid the mortgage and it was over that that they were fussing with him." His daughter-in-law objected to his taking back the property and thought that it should be given back to her and the son. On the day of the arrest she was in deceased's office "fussing" about this matter and she also accused him of having a love affair with her daughter, who was his granddaughter. During the time she was in deceased's office she brought up these matters and "a lot of stuff that seemed to have been years and years before and just made a bad scene." Deceased was ill and had his stenographer call the police who arrested the daughter-in-law. Deceased employed plaintiff to look after the prosecution for deceased, which plaintiff did. There was one continuance of the case in the Police Court. It was then tried and the daughter-in-law was fined but she appealed to the Criminal Court where the case was continued several times. The disposition of the case there is not shown in the testimony. However, deceased wanted his daughter-in-law to stay away from him and he was highly gratified with the way plaintiff handled the case. It appears that the sum of $250.00 has been paid to the plaintiff on account of his services in this matter.
The basis for the second division of the claim was alleged conferences with and legal advice given to deceased "in regard to his will, land and a corporation" alleged to have taken place between May 24th, 1926, and September 25th of that year. A claim of $300.00 was made for these services but there is no evidence to support the same.
The third part of the claim was for settling a demand of the deceased against one Estella Jacobia for $1,400.00. Seven hundred dollars was claimed by plaintiff for his services in regard to this matter. The facts in relation to the Jacobia claim show that deceased had a demand against her for rent that she had not paid; that he turned the bill over to plaintiff for collection. Plaintiff wrote Mrs. Jacobia a letter resulting in her coming to his office and telling him that it was not necessary to have an attorney in the matter but that she would go to deceased's office and adjust the matter with the deceased there. She thereupon went to that office and settled the matter with the son of deceased, she being credited on the account for her services for renting certain apartments for deceased. It was agreed that she was to pay a balance of $1,400.00. A writing covering the settlement was drawn up by plaintiff and signed by the parties. She left her diamonds with deceased which she was to receive when she paid the $1,400.00, which she has not yet done.
It is claimed that the Circuit Court had no jurisdiction of the cause for the reason that the transcript of the Probate Court recites that plaintiff's claim in the sum of $2,500.00 was allowed "by agreement of all parties" and, therefore, the case could not have been legally appealed to the Circuit Court. The matter is specifically mentioned in the Motion in Arrest of Judgment. However, there was a stipulation filed in the cause before the trial signed by the attorneys for the respective parties, reciting that the transcript, through accident or mistake, incorrectly recited that the judgment in the Probate Court was rendered by agreement of the parties when, as a matter of fact, it was secured by default. It was stipulated that the transcript be corrected so as to recite that the judgment was by default and not by agreement of the parties. In this connection, however, it is the contention of the plaintiff that the judgment of the Probate Court could only be "corrected as the statutes provide" without referring us to any statute on the matter, and that it could not be corrected by stipulation.
While there are procedures recognized by the law for the correction of records (see 34 C. J. p. 207 et seq.) which usually contemplate a contest over the particular matter (34 C. J. p. 318 et seq.), we know of no statute or rule preventing a correction, of the kind herein involved, of a record by stipulation, such as was entered into in this case. See Steck-messer v. Graham, 10 Wis. 37.
It is claimed that the stipulation was not introduced in evidence. However, this was unnecessary as when it was filed in the cause it became a part of the record. 36 Cyc. p. 1283.
Plaintiff contends that the stipulation was signed by his attorney, not only without his consent but over his protest. However, there is no evidence of this anywhere in the record and the first statement of this kind made by plaintiff appears in his briefs filed in this court. Plaintiff in this court, at least, is bound by the stipulation signed by his attorney, as it cannot be attacked for the first time here. 36 Cyc. pp. 1282, 1293 to 1296. There is not a thing in the record indicating that this stipulation was not entered into fully and freely by both parties, and if there is any merit in plaintiff's contention that the Circuit Court had no jurisdiction of the cause it is remarkable that neither he nor his attorney called the court's attention to the matter but proceeded to try the cause as though the court had jurisdiction. However, we are not placing our decision upon this conduct of plaintiff. So far as we are concerned he is bound by the stipulation signed by his attorney.
In support of his Motion for a New Trial plaintiff sought to file an affidavit (which the court refused) and did actually file one affidavit. In these affidavits plaintiff, among others things, stated that the claim was allowed in the Probate Court without objection being made by the defendants or their attorneys. The same information is contained in the Motion for a New Trial. Even if this could be said to be a statement that the claim was allowed by consent or agreement we could not consider these affidavits for the purpose of showing such a fact or any other fact set forth therein. Most of the affidavit not filed contains facts which plaintiff would have testified to at the trial had the court permitted him to testify but as plaintiff was an incompetent witness that part of his affidavit, for this and other reasons, was immaterial. But the court properly ruled out the whole affidavit for the reason, among others, that the Motion for a New Trial did not raise any matter occurring since the trial or first coming to the attention of plaintiff since the trial but covered matters either occurring at the trial or those that should have been called to the attention of the court thereat. Parker v. Britton, 133 Mo. App. 270, 113 S. W. 259.
It is insisted that the court erred in refusing to permit plaintiff to...
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