State v. Kelly

• Decision Date: 06 April 1922
• Docket Number: No. 22920.,22920.
• Citation: 293 Mo. 297,239 S.W. 867
• Parties: STATE ex rel. ROBERTSON et al. v. KELLY, Judge.
• Court: Missouri Supreme Court

239 S.W. 867

293 Mo. 297

STATE ex rel. ROBERTSON et al. v. KELLY, Judge.

No. 22920.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Mandamus by the State of Missouri, on the relation of Achilus E. Robertson and another, against Frank Kelly, Judge. Alternative writ made peremptory.

Andrew W. Hunt, of Bloomfield, for relators.

Henson & Woody, of Poplar Bluff, for respondent.

JAMES T. BLAIR, C.J.

This is a proceeding by mandamus to compel the judge of the circuit court of Mississippi county to enter judgment in accordance with the directions given by this court in reversing the judgment and remanding the cause in Bryan v. McCaskill, 284 Mo. 583, 225 S. W. 682. The facts in that case need not be restated in this, " but may be found in the decision cited. Most of these facts are stated in the alternative writ. The directions to the trial court to which reference has been made are as follows:

"The judgment of the Mississippi circuit court is accordingly reversed, and the cause remanded to said court, with directions to enter in proper form its judgment declaring these appellants, Robertson and wife, to be the owners in fee by the entirety of the north half of section 10, township 28, of range 11, and that this respondent has no right, title, nor interest therein."

This decision was concurred in by all the judges in court en banc. The mandate was filed in the trial court in due course. February 14, 1921, George A. Burr, who had been one of the contending and unsuccessful defendants in this court, was permitted by the trial court to file an amended answer in which he averred that he had paid $75 for the land in question and, since 1916, had, in good faith, paid taxes amounting to $3,184.55, and asked judgment therefor, and that it be decreed to be a lien on the land. Robertson and wife thereafter moved the court to enter judgment in accordance with the mandate and directions of this court. This motion was overruled. The trial court then took up the issues tendered by the amended or new answer of Burr and heard Burr's testimony. Robertson and wife refused to participate in this proceeding. As a result of the hearing, the court rendered a judgment which declared the title in the land in question to be vested in Robertson and wife and, in addition, adjudged that Burr was entitled to recover $3,184.55 for taxes paid "to protect the title to said land and extinguish liens thereon." This sum was, by the judgment rendered, made a lien on the land as prayed in Burr's amended answer. Burr's pleadings in the case prior to the judgment in November, 1920, in this court, did not set up any claim for taxes paid. No motion for rehearing was filed in that case after the reversal and remandment in 1920, and no claim made in this court that Burr had any equities arising out of any payments made by him in the interim between the appeal and the decision mentioned.

I. It is argued that mandamus will not lie, since relators might have appealed. The rule of this court is that, when a judgment is directed by an appellate court, it is "the imperative duty" of the trial court to enter it as directed. State ex rel. Carson v. Lamb, 232 S. W. loc. cit. 984. In that case the alternative writ was made peremptory. (a) When an appellate court directs a specific judgment and its direction becomes final and the trial court fails or refuses to comply with the direction, it may be that the futility of the first direction might incline the court to lean to some remedy other than a second direction, on appeal, which could have no sanction to enforce compliance with it which did not accompany the first mandate issued. The "remorseless regressus" has no greater claim to welcome in the courts than elsewhere. (b) We do not hold that an appeal will not lie. In a long list of cases, this court has held that it will lie, but that the sole question reviewable is whether the judgment entered conformed to the judgment directed to be entered. If it did, the judgment here has been one of affirmance (except in a case to be noted), and, if it did not, the...