Powell v. Bowen

• Decision Date: 06 April 1922
• Docket Number: No. 22835.,No. 22858.,22858.,22835.
• Parties: POWELL et al. v. BOWEN et al. STATE ex rel. POWELL. et al. v. McCARTY, Judge.
• Court: Missouri Supreme Court

240 S.W. 1085

POWELL et al. v. BOWEN et al.

STATE ex rel. POWELL. et al. v. McCARTY, Judge.

No. 22858.

No. 22835.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Motions for Rehearing Denied April 29, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Belle Powell and others against Mary Bowen and. others. Judgment for plaintiffs, and defendants appeal and plaintiffs also, as relators, apply for mandamus directed to Sterling H. McCarty as judge to require him to enter a judgment in conformity to a mandate of the Supreme Court. Appeal dismissed, and peremptory writ of mandamus issued.

In Case 22858:

C. G. Shepard, of Caruthersville, and Barclay & Wallace, of St. Louis, for appellants.

J. R. Brewer and John E. Duncan, both of Caruthersville, for respondents.

In Case 22935:

J. R. Brewer and John E. Duncan, both of Caruthersville, for relators.

C. G. Shepard, of Caruthersville, and Barclay & Wallace, of St. Louis, for respondent.

HIGBEE, J.

These two cases may be properly considered as one. The facts in the original litigation may be found in Powell v. Bowen, 279 Mo. 280, 214 S. W. 142. The land in dispute belonged to Mrs. Belle Powell, who, with her husband, John W. Powell, on September 15, 1882, undertook to convey it to Mark T. Leonard from whom defendants derive title. The deed, not having been acknowledged by Mrs. Powell separately and apart from her husband, we held was abortive as to her, but conveyed Powell's interest. Under the then existing law Powell was entitled to the use and possession of the land during the life of his wife, or Ito curtesy if a child were born alive of the marriage. The record was silent as to the birth of a child. Whatever his interest was, an estate for the life of his wife or curtesy, that was the extent of the defendant's right. The judgment of the trial court vesting the title in the defendants was reversed and remanded, "with directions to the trial court to adjudge the title to the land in controversy to be in plaintiffs, subject to the right of possession, of defendants therein, till such time as the husband of Belle Powell shall depart this life, if so it be; in the event of plaintiff's prior death, such husband shall have also an estate by curtesy." Powell v. Bowen, supra, 279 Mo. loc. cit. 297, 214 S. W. 147.

One thing only remained for the trial court to do—to ascertain if John Powell had an estate by the curtesy in the land conveyed or an estate for the life of his wife, and then to enter the judgment directed by the mandate.

There is some confusion in the record an to dates. It is stated in suggestions filed by the respondent, Judge McCarty, that the mandate reached the circuit court in August, 1920; that relators filed their motion for judgment August 27, 1920, anal that the judgment they complain of was entered December 9, 1920. The return to the alternative writ states that the judgment of the lower court was reversed June 14, 1919, whereas the official report (279 Mo. 280, 214 S. W. 142) shows it was July 7, 1919. However, this seems to be unimportant, and we take the dates of the various proceedings as found in the record.

After receiving the mandate the trial court, on July 19, 1919, without taking evidence to determine if a child had been born of the marriage, entered a judgment vesting title to the premises in the plaintiffs—

"subject to the right of possession of the defendants herein, till such time as the husband of the plaintiff, Belle Powell, shall depart this life, if so it be; in the event of the plaintiff's Bell PowelPs prior death, such husband shall have an estate by curtesy. * * * (and the defendants herein be and are entitled to the possession of said real estate during the life of the said J. W. Powell, whether he hold by curtesy or by his common-law right growing out of his marriage with the said Belle Powell. It is further ordered, adjudged and decreed by the court that the right of and to possession of the above-described land is not adjudged or determined in this proceeding beyond the right of possession during the life of J. W. Powell as aforementioned, and the right of the defendants to claim for improvements made on said lands is in no wise determined or adjudged in this proceeding, and is left open for determination when the life estate of the said J. W. Powell shall be extinguished.)"

At the following November term Mrs. Bowen filed a motion to set aside the judgment so entered at the previous term for irregularity in this, that the defendant William Bowen, had died on October 26, 1916, and because the judgment was entered of record after the adjournment of the July term, 1919, and at a time so late as to deprive defendant of the right to take exceptions or to file a motion for new trial or in arrest. She also formally suggested the death of William Bowen, and served notice on plaintiffs' attorneys that she would, on January 6, 1920, present her motion to set aside said judgment for irregularity. On January 7, 1920, the court sustained the motion to set aside the judgment, plaintiffs' attorney not appearing, and revived the cause in the names of the successors in title of William Bowen, deceased, who filed an answer claiming an interest in the land. At the next March term Mrs. Bowen, by leave of court, filed an amended answer, setting up various new defenses based on the statutes of Indiana, where the Bowens lived at the time they executed the deed to Leonard, by virtue whereof, and certain clauses of the state and federal Constitutions, she claimed the deed was effective to pass Mrs. Powell's title. She also pleaded adverse possession under the 24 and 31 year statutes of limitations, abandonment, estoppel, and a counterclaim for improvements made on the land, and damages.

When the case was called for trial at the November term, 1920, the plaintiffs objected to the introduction of any evidence, because the case "has been adjudicated by the Supreme Court, and has been remanded to this court with specific directions, and this court has no other jurisdiction except to order in accordance with the opinion of the Supreme Court." The court said:

"The court has said it is willing to do that, and I don4 understand what this is offered for, but will at least let him make his record and offerings and maybe later will overrule it."

Plaintiffs excepted. The defendants offered evidence tending to support the averments of the amended answer. The court, on November 20, 1920, re-entered the judgment of July 19, 1919.

The court overruled a motion for new trial granted the defendants an appeal, and allowed and filed defendants' bill of exceptions.

On July 8, 1921, on the petition of Belle Powell and Sex A. Trimble, as relators, we issued our alternative writ of mandamus to Hon. Sterling H. McCarty, judge of the circuit court of Pemiscot county, requiring him to set aside the judgment entered in the above-mentioned cause, and to enter judgment as directed in our mandate, or show cause why he should not do so. The petition recites the various proceedings in this litigation, and that, after the filing of our mandate, the relators, as plaintiffs in said action, moved the court to enter judgment in accordance with said mandate. It then sets forth the judgment as actually rendered, hereinbefore recited, and prays relief, in accordance with which our alternative writ issued.

The respondent made a lengthy and argumentative return in justification of his actions. He avers, in substance, that on July 19, 1919, he entered of record a decree substantially as alleged in the alternative writ; that no objection or exception was taken thereto, or motion made to amend, vacate, or set aside; that at an ensuing term Mary Bowen moved to set aside said decree for irregularities and errors of fact, assigning various grounds; that notice was given to plaintiffs of the filing of said motion, and when it would be presented; that during the pendency of said motion Mary Bowen suggested the death of William Bowen, her codefendant; that, after said decree had been vacated, without exception thereto having been made, the successors in title of William Bowen, by leave of court, entered their appearance, filed their answer in said cause, and Mary Bowen, by leave of court, filed an amended answer, which stated some new facts, pleading the laws of Indiana then in force, showing that Belle Powell, when said deed was executed, had power to contract and make covenants of title in Indiana as a feme sole, but that, at the trial of the issues upon the amended answer, respondent was constrained by the mandate of this court to enter the decree quoted in the alternative writ in substantially the terms in which it had been entered on July 19, 1919, to which relators took no exception, but defendants moved for a new trial and later filed exceptions, and in due time appealed to this court, referring to their printed abstract for further details; that on August 27, 1920, relators filed their motion in said court that said court enter judgment in said cause (in the language of the mandate); that respondent, acting judicially, did not deem the judgment so prayed to be a complete expression of the" judgment of this court in said cause, and accordingly respondent, as judge of said circuit court, on December 9, 1920, caused to be entered the judgment of said court as substantially recited in the alternative writ; that, with the exception of said motion so filed, without giving opportunity to hear any complaint or objection, relators have applied to this court, and still insist upon compulsory process to require respondent to set aside the said decree and enter something different, notwithstanding said cause has passed from the jurisdiction of said circuit court by virtue of the appeal taken to this court, and this court now has power to vacate said decree and to adjudicate said cause, and respondent denies generally the allegations of said...