Reed v. Colp

• Decision Date: 03 July 1908
• Parties: REED et al. v. COLP et al.
• Court: Missouri Supreme Court

112 S.W. 255

213 Mo. 577

REED et al. v. COLP et al.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. ABATEMENT AND REVIVAL — DEATH OF APPELLANT.

The suggestion of the death of one of the appellants being made after the first submission on appeal and before the resubmission on rehearing, and no steps having been taken to enter the appearance of his personal representative, it will be assumed that a revivor has been abandoned.

2. SAME.

Under Rev. St. 1899, §§ 856, 857 (Ann. St. 1906, pp. 805, 806), providing that if there be several appellants, and one of them dies after submission of the cause, the death shall be suggested by the others, and if one of them dies after submission of the cause the appeal shall not thereby abate, but such death shall be suggested, and the cause shall proceed at the suit of the surviving appellants, a revivor is not necessary to a continuation of a suit on appeal, where suggestion of the death of one of the appellants is made after first submission on appeal, but before the resubmission on rehearing.

3. APPEAL AND ERROR — AMENDING BILL OF EXCEPTIONS.

The proceedings of the trial court in amending the bill of exceptions after appeal can receive no additional validity from leave to apply to the trial court for the amendment, granted by the Court of Appeals while the appeal was pending there; the case being one of which the Court of Appeals had no jurisdiction, and such court being therefore precluded from doing anything in the cause, except to transfer it to the Supreme Court.

4. EXCEPTIONS, BILL OF — AMENDMENT.

Subsequent to the settling and filing of the bill of exceptions, and as part of the scheme to amend said bill, the trial court corrected, nunc pro tunc, record entries of the overruling of motions for new trial and in arrest, to show the saving of exceptions to such ruling of the court, the entry of corrections showing, by necessary implication, through reference to the standing rule of the trial that it is not necessary to save exceptions to such ruling, but they will be presumed, that the sole reliance of the court for insertion of the exceptions was such standing rule. Held, that the bill of exceptions could not thus be amended through mere argument and deduction from a standing rule.

5. SAME — EXTENDING TIME FOR FILING.

The bill of exceptions not containing the motions for new trial and arrest, or any call therefor, or any exceptions to the overruling thereof, alterations to show these therein, made after lapse of time for filing a bill, is not an amendment thereof, but an extension of time for filing a bill, which is not allowable.

6. JUDGMENT — CONFORMITY OF PLEADING AND EVIDENCE.

The petition, in effect, for cancellation, for fraud, of plaintiff's purchase of a mill, alleging an offer to reimburse defendants for use of the

mill, and the decree showing that plaintiff, in open court, offered such reimbursement as the price of a decree, and the chancellor holding that the use of the mill was worth $150, but the decree for cancellation, by inadvertence, omitting to adjudge defendants such payment, there is error on the record proper.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Suit by M. O. Reed and another against John Colp and another, a firm dealing as Colp Lumber & Machine Company, and another. Decree for plaintiffs. Defendants appeal. Reversed and remanded.

L. R. Thomason and Martin L. Clardy, for appellants. Mozley & Wammack, for respondents.

LAMM, J.

This is a suit in equity to enjoin a sale under a deed of trust upon real estate belonging to plaintiffs and situate in Stoddard county, Mo., and to cancel the notes secured thereby as void by reason of fraud and misrepresentation moving in their execution, and to remove the cloud upon plaintiffs' title arising from the record lien of said deed of trust. Defendants are the trustee, Houck, and the beneficiaries in the deed of trust, to wit, John and Monroe Colp, doing business as the Colp Lumber & Machine Company. The decree was for plaintiffs, and defendants appeal.

At the April term of this court, 1906, the cause was submitted on argument and briefs. At its October term, 1906, an opinion was handed down, but a rehearing was granted. At the October term, 1907, counsel suggested the death of Mr. Houck, and the cause was continued to the April term, 1908. At said April term it was resubmitted on the same briefs. The petition sets forth that the notes were given for plaintiffs' purchase of a sawmill from the Colps, and the false representations (alleged with a scienter, and relied on in the dicker and sale), relate to the sawing capacity, the newness, and market value of said mill. Among other things, it is alleged that, on discovering the covinous contrivances of the Colps in and about the sale and the deceit practiced in false representations leading up to it, plaintiffs offered to rescind the contract and to return the sawmill and its appurtenant machinery in as good condition as when received and to pay defendants a reasonable price for its use, demanded their notes and the satisfaction of the deed of trust securing the same, and that defendants refused the offer. Further, the petition states that: "Plaintiffs now here in court offer to redeliver to defendants said sawmill and all machinery in connection therewith in as good condition as when received by plaintiffs." Denying the fraud and affirmatively pleading other matter not in point for our present purpose, the answer avers that plaintiffs have leased said mill to parties named and have collected the rent for their own use and benefit. In its decree, the trial court found the allegations of the petition to be true (setting them forth), and found further: "That plaintiffs in court offer to deliver said sawmill in as good condition as received and pay a reasonable price for use of said sawmill. That a reasonable price for use of said sawmill was $150." The decree then continues as follows: "The court therefore decrees that defendant take this said sawmill, deliver up for cancellation said deed of trust and $1,800 note, together with the two $600 notes, and that same be canceled, that same are void and of no effect, that the cloud upon plaintiffs' title to said real estate be and is hereby removed, that defendants take nothing for said notes and deed of trust, and that the costs of this suit be adjudged against defendants." For reasons appearing later, the facts need not be stated. A sufficient statement to make intelligible questions of practice determined will appear in the body of the opinion.

1. The suggestion of the death of one of appellants was made after the first submission and before the resubmission. No steps having been taken to enter the appearance of his personal representative, we shall assume that a revivor has been abandoned. Under the circumstances noted, a revivor is not an indispensable step to a continuation of a suit in the Supreme Court where one out of several appellants dies. Rev. St. 1899, §§ 856, 857 (Ann. St. 1906, pp. 805, 806). Statutes somewhat similar were under exposition in Prior v. Kiso, 96 Mo., loc. cit. 315 et seq., 9 S. W. 898, and that was the conclusion reached whether the statutes or the common law controlled. See, also, Hunleth v. Leahy, 146 Mo. 408, 48 S. W. 459.

2. The appeal in this cause was granted to the St. Louis Court of Appeals. On submission there, that court handed down the following opinion: "The object of the suit is to set aside a deed of trust to land on the alleged ground of fraud in its procurement. Such a suit directly involves title to real estate within the meaning of the Constitution defining the jurisdiction of the Supreme Court. Nearen v. Bakewell, 110 Mo. 645, 19 S. W. 988; Overton v. Overton, 131 Mo. 559, 33 S. W. 1; Scheer v. Scheer, 148 Mo., loc. cit. 448, 50 S. W. 111; Bouner v. Lisenby 73 Mo. App. 562. For the reason therefore that the jurisdiction of the subject-matter of this suit is by the Constitution of the state vested in the Supreme Court, the cause is transferred to that court." On the strength of that opinion, the cause came here. While pending in the St. Louis Court of Appeals, it seems appellants there applied for and were granted leave to apply, nisi, to amend the bill of exceptions, so as to show for the first time the motions for a new trial and in arrest, and that exceptions were saved severally in overruling them. At all events, we find among the papers a transcript of entries made on proceedings had on March 19, 1902, in the Stoddard circuit court, several terms after the appeal was granted and the original bill of exceptions was settled and filed, which seek to justify themselves by such leave. That transcript, omitting caption and certificate, follows, totidem verbis: "Whereas, appellant in the above-entitled cause did on heretofore, to wit, the 10th day of March, A. D. 1902, file in the St. Louis Court of Appeals their application for leave to amend their bill of exception filed in this cause on heretofore, to wit, August 8, 1901; and whereas, the St. Louis Court of Appeals on the date aforesaid did grant leave to appellant to apply to the circuit court of Stoddard county, Mo., to correct and amend said bill of exceptions filed by appellants as aforesaid so as to show that appellants filed their motion for new trial and in arrest of judgment and took and saved their exceptions to the order of the court in overruling of said motion provided that said court should further find from competent evidence that said motions...