Sullivan v. Kirkpatrick
| Decision Date | 05 May 1913 |
| Citation | 156 S.W. 492,171 Mo.App. 233 |
| Parties | U. W. SULLIVAN, Appellant, v. J. E. KIRKPATRICK, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Wright Circuit Court.--Hon. C. H. Skinker, Judge.
Judgment affirmed.
F. M Mansfield, E. H. Farnsworth and Lamar, Lamar & Lamar for appellant.
(1) The records of the county court relating to the establishment of the road are regular and in due form in all respects. R. S 1909, sec. 10447-10453; Fitzmaurice v. Turney, 214 Mo. 630. (2) Where the record is silent as to jurisdictional recitals the proper antecedent steps will be presumed. Hadley v. Bernero, 103 Mo.App. 549; State v Batey, 166 Mo. 561. (3) Defendant being in court was chargeable with notice of the judgment and all its recitals and of the time in which he was required to vacate the land condemned for the road. A party before a court is chargeable with notice of all subsequent steps taken in the case down to and including the judgment although he does not in fact appear and has no actual knowledge thereof. 29 Cyc. 116-b; 23 Cyc. 856; McCormick v. Stevens, 239. (4) The defendant having pleaded that the record of the county court was wrong, and the court overruling the plaintiff's motion to strike out such answer, the whole controversy in the lower court centered around the question as to the correctness of this record, and as to whether or not defendant could contradict the record by oral testimony. The records and judgments of a court impart absolute verity, are in conclusive and exclusive evidence of what was the judgment actually rendered by the court, and parol evidence is inadmissible to contradict, vary, or enlarge them. They are conclusive evidence of the facts therein recited between the parties thereto. 17 Cyc. 500-iv; 17 Cyc. 571-b; 23 Cyc. 855; Freeman on Judgments (3 Ed.), sec. 134, p. 143; Freeman on Judgments (3 Ed.), sec. 76, p. 275; Black on Judgments (Ed. 1891), sec. 245, 273, 625, 626; Mobley v. Nave, 67 Mo. 546; Cook v. Penrod, 128 Mo.App. 136; Montgomery v. Farley, 5 Mo. 233; Maupin v. Franklin Co., 67 Mo. 327; Davidson v. Real Estate Co., 226 Mo. 29; Cooksey v. Railroad, 74 Mo. 477; Milan v. Pemberton, 12 Mo. 588; Lamonthe v. Lippott, 40 Mo. 142. (5) The above is also true of the records of a county court, They possess the same verity and are absolutely conclusive of the recitals therein, and cannot be contradicted, explained, enlarged, or modified by parol evidence. Riley v. Petis Co., 96 Mo. 318; County of Johnson v. Wood, 84 Mo. 142; Maupin v. Franklin, 67 Mo. 327; Dennison v. St. Louis County, 33 Mo. 168. (6) Statements of a judge outside of his court is not evidence of the actions of the court as a court, nor can evidence of such statements be recited to prove what the court did. Decker v. Deimer, 229 Mo. 322. (7) Courts are reluctant to disturb judgments, and the party asking such relief must be without fault or negligence. Black on Judgments, 365-367-375-387; 23 Cyc. 980-b; Renfrow v. Renfrow, 54 Mo.App. 429; Mesker v. Cornwell, 145 Mo.App. 650; Cantwell v. Johnson, 236 Mo. 601. (8) If it be held that in this action defendant may by answer file a bill in equity seeking relief from the judgment as entered, and that his answer herein is sufficient for that purpose, then it converts the proceeding into an action in equity, and the appellate court will examine and review the evidence and determine the weight and sufficiency thereof for itself, and render, or direct the lower court to render, such judgment as may be proper under the evidence. McCullum v. Broughton, 132 Mo. 621; Franklinbourg Appellate Practice, p. 163; Lose v. Borum, 19 Mo.App. 359; Shelton v. Franklin, 224 Mo. 368; Troll v. Spencer, 238 Mo. 93; Waddington v. Lane, 202 Mo. 415; Benne v. Schnecker, 100 Mo. 257. (9) In an action in equity to vacate a judgment, or enjoin its enforcement, all presumptions are in favor of the validity of the judgment, and the burden of proof rests on the plaintiff, or when raised by equitable answer upon the defendant, and he must show himself entitled to the relief by evidence, clear, satisfactory and convincing or the bill will be dismissed. 23 Cyc. 1049, and cases cited; Huntington v. Crouther, 33 Ore. 408, 72 Am. St. Rep. 726; Engler v. Knoblaugh, 131 Mo.App. 495.
Jackson & Jackson and Perry T. Allen for respondent.
(1) Appellant's cause of action is based upon what he claims to be the record of the judgment of the county court which record the appellant's evidence shows to have been mutilated, changed, erased, and interlined. Appellant insists that that respondent cannot impugn the verity of the record in this action. Respondent contends that this contention is not true, that the verity of the record is directly in issue, that respondent's answer directly attacks the same, and that the records do not impart absolute verity. When in equity a clear case of fraud, accident or mistake is made out. Engler v. Knoblaugh, 131 Mo.App. 481; Davidson v. Hough, 165 Mo. 561; Capitain v. Trust Co., 240 Mo. 484. (2) The answer of respondent pleads that the order and judgment sued on is false, untrue and spurious and is not the true order and judgment of the county court. That the entering of record of the said false and spurious judgment was due to the act of one of the attorneys of the appellant in preparing a false form together with the mistake and oversight of the clerk in spreading the same on record and was no fault or negligence of the respondent. The respondent being injured by an unforeseen occurrence not due to his own negligence is entitled to relief therefrom. Engler v. Knoblaugh, supra; Smith's Equity, 14 Ed. 44; Story's Equity, 13 Ed. par. 78. (3) Courts of equity will relieve against judgments due to fraud, accident or mistake in all cases where the facts in evidence clearly prove it to be against conscience to execute the judgment and of which the injured party could not have availed himself at law. Bassett v. Henry, 34 Mo.App. 548; Wilhite v. Terry, 66 Mo.App. 454; David v. Staple, 45 Mo. 567; George v. Tutt, 36 Mo. 141. (4) Appellant's action being for the recovery of a penalty his rights in the premises must be strictly construed. The law does not favor penalties and it is elementary that in actions for the recovery of penalties the claimant must prove all the facts alleged and must allege and prove all the facts upon which the law predicates a right to recover. Statutes imposing penalties are strictly construed. State v. Wheeler and Adams, 101 Mo.App. 468; Dunkin v. Ins. Co., 63 Mo.App. 257; St. Joseph v. Forsce, 115 Mo.App. 510; Kingston v. Newall, 135 Mo.App. 385; Snow v. Boss, 174 Mo. 149. (5) The law abhors forfeitures and courts will indulge in no presumptions to aid them. King v. Life & Annuity Co., 133 Mo.App. 612; Watson v. Gross, 112 Mo.App. 615.
-Plaintiff instituted this suit in the circuit court alleging in his petition that the county court of Wright county by appropriate proceedings, in which he was petitioner, at its November term, 1911, ordered a private roadway to be opened up across the premises of the defendant before the 15th day of November, 1911, pursuant to the provisions of section 10447, et seq., and that the defendant failed from said 15th day of November, 1911, until the 17th day of January, 1912, to open the road, and sought to recover the penalty provided for in section 10454.
To this petition the defendant filed his answer attacking the proceedings leading up to the final order and alleging that the order in fact made by the court gave the defendant until the 15th day of April, 1912, in which to open up said road, and alleging that by reason of what transpired in court on the day the order was made that he was led to believe that he had until that date in which to open said road.
We deem it unnecessary to go into the details of the pleadings as they are sufficiently broad to cover the facts developed at the trial and pass over all the alleged errors in the proceedings leading up to the time the final order for the opening of the road was made and assume for the purposes of this opinion that there were no irregularities prior to that date.
The trial of the case was had to the court and the judgment, which was for the defendant, recites that a jury was waived by both parties. The plaintiff, after an unsuccessful motion for a new trial, has brought the case to this court.
The testimony discloses that on November 7, 1911, the petition of the plaintiff for the opening of the road was ready for final determination and that said petitioner's attorney was present in the court room while the court was in session and was advised that the road would be ordered opened and judgment entered therefor accordingly. The plaintiff's attorney was given the privilege of preparing the order. It appears that then no time was fixed in which the road should be opened, but after the petitioner's attorney left the court the attorney for the defendant appeared before the court then in session and called the court's attention to section 10453, requiring the court in its judgment to specify the time when possession was to be given by the owner, and that thereupon the court announced to the defendant's attorney that defendant would be given five months from that time. Said attorney then notified the defendant of the action of the court and the defendant testified that one of the judges of the court afterwards upon the street during that day told him he had been given five months in which to open the road. This the judge does not deny but says that if he ever said anything to defendant about the time for opening the road he does not...
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