Platte County v. Locke

• Decision Date: 08 June 1922
• Parties: PLATTE COUNTY v. JOHN I. LOCKE, Appellant
• Court: Missouri Supreme Court

242 S.W. 666

294 Mo. 207

PLATTE COUNTY v. JOHN I. LOCKE, Appellant

Supreme Court of Missouri, Second Division

June 8, 1922

Appeal from Platte Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Reversed and dismissed.

John D Wendorff and James H. Hull for appellant.

(1) The circuit court committed error in dismissing appellant's appeal from the judgment of the county court to the circuit court, setting aside the order of sale by said county court of lands described in said patent to appellant. Secs. 2436 2584, R. S. 1919; In re Incorporation of Uniondale, 203 S.W. 508; State ex rel. v. Fleming, 147 Mo. 10; State ex rel. v. Wiethaupt, 238 Mo. 155; State ex rel. v. McElhinney, 246 Mo. 44; State ex rel. v Evans, 83 Mo. 319; State ex rel. v. Buerinan, 186 Mo.App. 691. (2) Appellant had the right to appeal from the judgment of the county court setting aside the order of sale of the county court selling land described in its patent issued to plaintiff. (3) Respondent's so-called motion to dismiss appellant's appeal from the county court to the circuit court is in realty a plea to the jurisdiction of said circuit court, to hear and determine this case, and should be treated the same as a demurrer so far as this appeal is concerned. Natl. Bank v. Ellison, 266 Mo. 423; Shohoney v. Railroad Co., 231 Mo. 149; Natl. Bank v. McDermand, 177 S.W. 1106. (4) The only question involved here is whether the circuit court had jurisdiction to hear this case on appeal from the county court.

Terrence Riley, Prosecuting Attorney, and Guy B. Park for respondent.

(1) A motion to dismiss, unless in the nature of a demurrer, is not a part of the record proper and will not be considered upon appeal unless preserved in bill of exceptions. Brown v. Foote, 55 Mo. 178; Levy & Co. v. Smith, 149 Mo.App. 314; Natl. Bank v. McDermand, 177 S.W. 1106; Bank v. Finks, 40 Mo.App. 367; Butcher v. Keil, 1 Mo. 262. (2) An appeal to the circuit court will not lie from an order of the county court vacating and setting aside a sale made under the Abandoned River Bed or Swamp Land Act, because no such appeal is provided for by said acts or other statutes. Wilson v. Township No. 6, 23 Mo. 416; Sheridan v. Fleming, 93 Mo. 321; Ry. Co. v. St. Louis, 92 Mo. 160; Aldridge v. Spears, 101 Mo. 406.

RAILEY, C. White and Reeves, CC., concur.

OPINION

RAILEY, C. --

It appears from the record herein that, on February 2, 1920, at the regular February term, 1920, of the Platte County Court, the latter sold to appellant ninety acres of swamp land in said county, located in Section 15, Township 51, Range 35, for $ 112.50, or $ 1.25 per acre. On said February 2, 1920, during the regular term of said court, a patent was issued in due form to said John I. Locke for the land aforesaid, which recites, among other things, the following:

"Platte County, State of Missouri, ss.

"To All To Whom These Presents Shall Come, Greetings:

"In compliance with an order of the County Court of Platte County, Missouri, made and entered of record by the county court of said county on the 2nd day of February, 1920, empowered by Chapter 69, Article 5, Sections 7997, and following sections of the Revised Statutes of Missouri 1909, and in consideration of the sum of one hundred twelve & 50/100 dollars, being $ 1.25 per acre, paid by John I. Locke, of Jackson County, Missouri.

"By these presents doth sell and convey to the said John I. Locke, all the right, title and interest it is by law empowered to sell and convey in and to the following described lands situated in the Missouri River bed near Waldron in said Platte County and embraced within the section township and range lines of Platte County, Missouri," etc.

Said patent described the land in controversy, was duly acknowledged, delivered and recorded in said county.

On February 16, 1920, appellant was notified by the county court aforesaid to appear on March 2nd, 1920, and show cause why the above sale, and order of sale, should not be vacated and set aside. On the 6th day of March, 1920, during said February, 1920, adjourned term of said county court, appellant Locke appeared and resisted the right of said court to cancel or vacate said sale or order of sale. The record of said court, on the date last mentioned, among other things, recites the following:

"Now, therefore, it appearing to the court that said order, ruling, action and judgment of this court heretofore made on the 2nd day of February, 1920, during the regular February term, 1920, of this court, and all orders, acts and conveyances made by this court in relation to the land aforesaid, were done and made by this court, under a misapprehension of the real facts, and as the result of misrepresentation and deceit practiced upon this court by the said J. I. Locke in obtaining said order, action, judgment and orders, acts and conveyances made by this court in relation to said conveyance, and was not and is not the order, action, ruling and judgment or conveyance of this court.

"It is therefore ordered, considered and adjudged that the order, ruling, action and pretended judgment of this court, so made and entered of record on the 2nd day of February, 1920, purporting to sell to one J. I. Locke the aforesaid described land, and all orders, acts, and conveyances made by this court, at this term, in relation thereto, be and are hereby cancelled, set aside and for naught held; that the records of this court be corrected in accordance with the order; and the county treasurer ordered and directed to refund the said J. I. Locke the sum of one hundred twelve & 50/100 dollars, being the purchase price of the said land."

On said March 6, during the February adjourned term aforesaid, appellant Locke filed an affidavit and bond for appeal. Said bond was approved and, on June 7, 1920, an appeal was granted him to the circuit court of said county. A transcript of the foregoing record and proceedings of the Platte County Court was filed in the circuit court of said county on June 11, 1920.

On September 8, 1920, Platte County aforesaid, by its attorney, filed in the circuit court aforesaid, in the above entitled cause, a motion to dismiss appellant's appeal, which, without caption and signature, reads as follows:

"Comes now the County Court of Platte County, Missouri, and moves the court to dismiss the appeal in the case for the reason that the circuit court has acquired no jurisdiction over the parties or the subject-matter by reason of said appeal; and because under the law there is no authority for appeal in such cases; and because the court has no jurisdiction."

On September 20, 1920, the circuit court aforesaid sustained the above motion and dismissed appellant's appeal, etc. In due time, appellant appealed to this court from the order and judgment of dismissal aforesaid and on May 25, 1921, filed his transcript of appeal herein.

I. The County Court of Platte County, acting in its administrative capacity, had the undoubted right to sell and convey the land in controversy to appellant Locke for the consideration aforesaid. [Article 5 and 6, chap. 56, R. S. 1919; State ex rel. Board of Education v. Wayne County Court, 98 Mo. l. c. 362, 11 S.W. 758.] In this case, the county court, in due form of law, sold the land in controversy to defendant Locke, for a paid consideration authorized by law, executed and delivered to him a proper patent therefor, which was duly recorded in said county. The foregoing facts disclose that an executed contract and sale was made between the foregoing parties, of the land aforesaid. If the sale of said land was obtained through fraud or mistake, Platte County had the right to seek the aid of a court of equity in setting aside said sale and canceling said patent, but its county court was not vested with equitable jurisdiction in respect to said matter, and possessed no authority to set aside a conveyance involving the title to real estate.

The judgment of the County Court of Platte County appealed...