Smith v. Perkins

• Decision Date: 09 July 1894
• Parties: Smith v. Perkins, Appellant
• Court: Missouri Supreme Court

27 S.W. 574

124 Mo. 50

Smith v. Perkins, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from DeKalb Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed and remanded.

S. G Loring for appellant.

(1) The trial court, after it had rendered final judgment and overruled motions for new trial and in arrest and entered an order granting an appeal, could not legally set aside the judgment. The question is analogous to those arising on changes of venue. Henderson v. Henderson, 55 Mo 544; State v. Daniels, 66 Mo. 207; State v Hopper, 71 Mo. 425; State v. Dusenberry, 112 Mo. 288; Colvin, v. Six, 79 Mo. 200; In the matter of Whitson Est., 89 Mo. 58; Frazier v. Fortenburry, 4 Ark. 162; Campbell v. Thompson, 4 Greene, (Iowa) 415; Allen v. Meadow Spring, etc., Co., 29 N.W. 543. (2) After the lower court had entered the order granting the appeal its jurisdiction terminated and that of the supreme court attached. State ex rel. v. Davis, 54 Mo.App. 216; Burgess v. O'Donoghue, 90 Mo. 299; Keyser v. Farr, 105 U.S. 263; Ladd v. Couzins, 35 Mo. 513; Levi v. Karrock, 115 Iowa 441. (3) The former judgment rendered against plaintiff was valid and binding notwithstanding his infancy. Horstmeyer v. Connors, 51 Mo.App. 397; 1 Black on Judgments, sec 193.

Harwood & Hubbell and F. B. Miller for respondent.

(1) The circuit court, during same term, has complete control over its orders and judgments. State v. Webb, 74 Mo. 333. (2) Not having appealed from the order wiping out and setting aside the judgment in his favor, defendant can not now raise that question in this court. Branson v. Branson, 102 Mo. 613. (3) The former judgment rendered against plaintiff was a personal one, entered against an infant and was absolutely void.

OPINION

Brace, J.

This is an action in ejectment to recover forty acres of land in DeKalb county. The petition is in common form; the answer a general denial. Judgment for the plaintiff, and the defendant appeals.

The case came on for trial in the DeKalb county circuit court at its November term, 1889. It was admitted for the purposes of the trial that John Smith is the common source of title.

The plaintiff, to show title, read in evidence a general warranty deed from the said John Smith, duly executed and acknowledged and bearing date September 21, 1868, conveying the premises to plaintiff. He further introduced evidence that defendant was in possession; that the plaintiff, at the time of the execution of the deed aforesaid, was an infant under the age of three years; and of the monthly value of the rents and profits, and rested.

The defendant, to show title, read in evidence a deed in proper form from the sheriff of DeKalb county, duly executed and acknowledged and dated April 15, 1874, conveying the premises to John Smith in pursuance of a sale made by said sheriff, under an execution levied thereon and issued upon a judgment of the circuit court of said county, rendered on the eighteenth day of April, 1873, in favor of the said John Smith and against the said Eli Smith plaintiff, for the sum of $ 111 debt, and $ 9.15 damages; the petition in the suit in which such judgment was rendered; summons issued thereon, and the return of the sheriff; the record of the appointment of a guardian ad litem by the court for said Eli Smith, upon the motion and suggestion of the plaintiff that the said Eli was an infant; the answer of said guardian ad litem, putting in issue the allegations of the petition, and the record of the judgment rendered thereon, at the April term, 1873, of said court, entered nunc pro tunc at the April term, 1876, of said court; and then introduced evidence, tending to prove that all the right, title and interest of the said John Smith, acquired by virtue of said judgment and sheriff's deed, by mesne conveyances, is vested in Oliver Lucabaugh, under whom the defendant is in possession as tenant.

The plaintiff, in rebuttal, then read in evidence the original record entry of the judgment of April 18, 1873.

This was all the evidence, and the case being submitted to the court thereon, the court found for the defendant and judgment for him was accordingly entered. Whereupon plaintiff filed motions for new trial and in arrest of judgment, which being overruled, he filed affidavit for appeal, and his appeal was allowed, with leave to file bond within ten days and bill of exceptions before or during the next term. Afterwards and during the same term, the court, upon its own motion, set aside all of its previous orders and judgments, made in said cause, and took the case under advisement, and so the same remained until the April term, 1891, of said court, when, the court having found for the plaintiff, judgment was at said term rendered for him, and the defendant appeals.

1. There can be no question but that it was within the power of the circuit court to set aside its previous orders and judgment in the cause at the same term and take the case under advisement. Until the end of the term all the proceedings were in the breast of the court and its power over them was plenary. Rottmann v. Schmucker, 94 Mo. 139, 7 S.W. 117; Carr v. Dawes, 46 Mo.App. 598; State v. Webb, 74 Mo. 333; Randolph v. Sloan, 58 Mo. 155; 1 Freeman on Judgments, [4 Ed.] sec. 90; 1 Black on Judgments, 1 [Ed.] sec. 305; Childs v. Railroad 117 Mo. 414, 23 S.W. 373.

2. The judgment of April 18, 1873, in the case of John Smith against the plaintiff Eli Smith, on which the execution issued, by virtue of which the premises were sold and conveyed by the sheriff to the grantor of defendant's lessor, as originally entered, was a personal judgment against said Eli for the amount of money claimed in the petition to be due the plaintiff therein as a balance of the purchase money for said land, with award of execution; as...