State ex rel. and to Use of Robbins v. Morris
| Decision Date | 20 May 1941 |
| Citation | 152 S.W.2d 199,237 Mo.App. 685 |
| Parties | State of Missouri, at the relation and to the use of J. K. Robbins, Collector of the Revenue, in and for the County of New Madrid, in the State of Missouri, in behalf of Drainage District No. 29 of said New Madrid County, Respondent, v. Linda Harris Morris and T. O. Morris, her husband, Appellants |
| Court | Missouri Court of Appeals |
Rehearing Denied June 12, 1941.
Appeal from the Circuit Court of New Madrid County; Hon. Louis H Schult, Judge.
Affirmed.
Sharp & Sharp for appellants.
(1) The filing of an answer on behalf of defendants amounted to a general appearance as respects jurisdiction of the person of defendants. Cherry v. Wertheim, 25 S.W.2d 118; Fleming v. McCall, 35 S.W.2d 60. (2) A general entry of appearance speaks from the time of its filing, regardless of the time of its execution. Gardner v. Gilbirds, 106 S.W.2d 970. (3) An attorney is not required to show his authority to appear for a client in a lawsuit. Davis v Lipschitz, 96 Mo.App. 587; Mignogna v. Chiaffarelli, 151 Mo.App. 363. (4) The appearance by a regular authorized attorney at law amounted to a submission to court's jurisdiction and is presumed to be with authority. State ex rel. v. Falkenhainer et al., 274 S.W. 758; State ex rel. v. Muench, 230 Mo. 240; Bradley v. Welch, 100 Mo. 258. (5) A duly licensed and practicing attorney's authority is presumed until challenged, and the burden of disproving is on the party questioning it, except when client denies the authority, when the burden is on the attorney. Riley v. O'Kelley, 250 Mo. 647, 157 S.W. 566; Davis v. Cohn, 96 Mo.App. 587; Dexter Improvement Assn. v. Dexter College, 234 Mo. 715; Miller v. Continental Ins. Co., 233 Mo. 91; Johnson v. Baumhoff, 322 Mo. 1017, 18 S.W.2d 13; Cooper v. Armour Co., 222 Mo. 1176, 15 S.W.2d 946; Styles v. Cooter Gin Co., 74 S.W.2d 1092; 7 C. J. S., 902-905 inc.; 88 A. L. R. 1, See note. (6) A stipulation or agreement between counsel is usually regarded as amounting to the entry of a general appearance. St. Louis v. Central Com. Co., 84 S.W.2d 133; State v. Brown, 23 S.W.2d 1092. (7) The statute directs that all lands owned by the same person or persons be included in one petition. R. S. 1929, sec. 9953. (8) Plaintiff may not split up his demands into separate actions, but must include them all in one action. Doebbeling v. Quimby, 221 Mo.App. 1178, 299 S.W. 632; Stump v. Hornback, 109 Mo. 272; Boutell v. Warne, 62 Mo. 350; Peper Automobile Co. v. St. Louis Union Trust Co., 187 S.W. 109; Bircher v. Boemler, 204 Mo. 554.
J. V. Conran for respondent.
(1) Section 9953, Revised Statutes of Missouri for 1929, was not in existence when the tax suits involved in this matter were filed in 1939; it had been repealed by the Legislature in 1933. Laws of Mo. 1933, p. 425. (2) A statute which uses the terminology "may" is construed as being permissive only, and not mandatory. State ex inf. McKittrick v. Wymore, 119 S.W.2d 941; State ex rel. Hanlon v. City of Maplewood, 99 S.W.2d 138. (3) It is not permissible to unite several parcels of land, which were individually assessed, in one suit. 37 Cyc. of Law & Procedure, p. 1301. (4) An attorney has no authority to waive original process without specific and express authority from his client; since it is the act of an agent rather than an attorney. McPike Drug Co. v. Wilson, 237 S.W. 1044; Bradley v. Welch, 100 Mo. 258. (5) The statute sets out the method to be followed in securing service of original process on nonresident defendants by publication. Secs. 891 and 899, R. S. 1939. (6) A motion to retax costs, which requires judicial determination, must be filed and action, if any, taken during the term of court in which final judgments were rendered; a motion filed after the judgment term comes too late. Christian County v. Dye, 132 S.W.2d 1018; Townsend v. Boatmen's Bank, 119 S.W.2d 433; Aetna Ins. Co. v. O'Malley, 118 S.W.2d 3.
This is an appeal from the order of the circuit Court of New Madrid County overruling a motion to retax costs. Defendants' Motion to Retax Costs alleges in substance that plaintiff had incurred excessive costs in two particulars: first, because of the fact the lands all being contiguous and under the same ownership, could have and properly should have been brought in one suit, thus reducing the costs; and, secondly, because of the fact that the publication was made after an answer, an entry of appearance had been filed by defendants through a duly authorized attorney. The facts briefly stated are substantially as follows:
Plaintiff, a drainage district of New Madrid County, Missouri, filed this suit against Linda Harris Morris and her husband, who are residents of the State of Tennessee. Defendants owned the land in this particular suit, together with several hundred acres of other land, all in one body, in the southeastern part of New Madrid County. This suit was filed on the 28th day of July, 1939, together with nineteen other suits. Part were brought by Drainage District No. 29 and the remainder by the St. Francis Levy District, J. V. Conran, an attorney, representing the drainage district in each case. On the same day the cases were filed an Order of Publication was issued by the clerk in the instant case, which was sent directly to the Weekly Record, a newspaper published in New Madrid County. On the first day of August, 1939, learning that this suit, together with others, had been filed, a written entry of appearance for defendants was filed by Attorney Sharp, in the office of the Clerk of the Circuit Court and a request made that if the Order of Publication had been issued that it be stopped in order to save costs. Considerable testimony, conflicting in most respects, was offered concerning the authority of Sharp to file the documents at the time he did, as well as conversations that took place between Attorneys Sharp and Conran. Evidence was also offered relative to the location of the various tracts of land owned by the defendants and showing they were located in the same neighborhood around Linda, New Madrid County, and most, if not all, lying contiguous. The files in each of the cases were also offered in evidence showing the amount of the costs taxed. Attorneys Sharp and Conran both testified.
For the purpose of disposing of this case it is unnecessary to set out the evidence, suffice to say that it is violently conflicting. Judgment, based on constructive service, was rendered by default in the instant case at the regular term of the Circuit Court of New Madrid County, on September 27, 1939. Among other things the judgment recites: Defendants did not appear in person or by attorney and no action of any kind was taken during the term by defendants. The costs, as taxed by the clerk, pursuant to the Statute, appear to be regular. No errors or mistakes appear and none are claimed by defendants in that respect. Execution was issued, levy made and the lands advertised for sale at the following regular January, 1940, Term of the Circuit Court of New Madrid County. On the 15th day of January, 1940, and at said regular January Term of said court, defendants filed their motion to retax costs. As heretofore indicated, said motion was overruled by the court and an appeal was duly taken by defendants to this court.
It will be observed that final judgment was rendered at the regular September, 1939, Term of the circuit court. No motion to retax costs was filed at that term or any other motion or pleading filed that would carry the cause over to the...
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