Sweet v. Maupin

• Decision Date: 30 April 1877
• Citation: 65 Mo. 65
• Parties: SWEET, ADMINISTRATOR OF JONES, PLAINTIFF IN ERROR, v. MAUPIN.
• Court: Missouri Supreme Court

65 Mo. 65

SWEET, ADMINISTRATOR OF JONES, PLAINTIFF IN ERROR,

v.MAUPIN.

Supreme Court of Missouri.

April Term, 1877.

Error to St. Louis Circuit Court.--HON. JAMES K. KNIGHT, Judge.

This suit was brought in the year 1866. It is based on five promissory notes of defendant. The case was here before, and is reported in 47 Mo. 323, when a judgment for defendant was reversed. The only issue presented by the pleadings is, whether the notes were considered and included in an allowance made by the county court in favor of the defendant, in the year 1864, for $3,607.19; the defendant holding the affirmative. There was great conflict of evidence, and it was chiefly directed to two points: First--Whether the records of the county court and the account itself, on which was endorsed the amount allowed, had been tampered with, so as to show an absolute allowance in favor of defendant, or whether such allowance was only made as an offset, and so endorsed on the claim and on the rough minutes of the clerk; and, Second-- Whether the notes were included and considered in the adjustment then made.

T. W. B. Crews, for plaintiff in error, cited: Society v. Hartland, 2 Paine, C. C. Rep. 536; Webster v. Lee, 5 Mass. 334; Hibshman v. Dulleban, 4 Watts (Pa.) 183; Whittemore vs. Whittemore, 2 N. H. 26; Halsey v. Carter, 1 Duer 667.

Amos M. Thayer, for defendant in error, cited: Clark v. Han. & St. Joe R. R., 36 Mo. 202; Brownell v. Pacific R. R. Co., 47 Mo. 239; Hickman v. Bird, 1 Mo. 495; Jones v. Snedecor, 3 Mo. 390; Pratt v. Rogers, 5 Mo. 51.

1. PROBATE COURT: judgment mutual claims; effect of allowance.

SHERWOOD, C. J.

It would indeed be difficult to carefully peruse the voluminous evidence in this case without reaching the same conclusion the jury did in the verdict found for the plaintiff, as the original claim, now before us, shows an evident alteration in the character of the allowance endorsed thereon--an alteration made with such great assiduity, both with pen and eraser, as to scarcely leave the faintest doubt that honest purpose never prompted the significant erasure.

2. _____: offset: parol evidence.

II. Complaint is made that Judge Becker, the presiding justice at the time the claim was allowed, was permitted to state the character of the judgment which was rendered. Ordinarily, of course, such evidence would be clearly inadmissible; but not so under the circumstances of this case. For his testimony, taken in connection with that of other witnesses, was not to contradict the record, but to show that fraud, which vitiates everything that it touches, had been employed to defeat the legitimate action of the court over which he presided, and, as expressed in the rough minutes of the clerk, by so changing the entry made thereon, which even defendant's attorney, Crowe, admits was made in a certain way, as to show an absolute unconditional allowance, instead of the allowance of a mere judgment of offset, as shown originally by those minutes.

3. JUDGMENT: fraudulent alteration: parol evidence.

III. Evidence showing such fraudulent alteration of a record, or any portion thereof, should certainly be very clear and forcible; but this has, in this case, been abundantly furnished, both verbal and written, to show the wrongful change. And should we refuse to receive it, we, by our own ruling, would only pave the way for repeated forgeries of this sort. No error is perceived in this regard, nor do we discover any error in the instructions given on the part of the plaintiff.

The third instruction told the jury that the verdict of allowance was not conclusive evidence in and of itself, that the note sued on had been adjudicated and passed upon by the county court at the time the allowance was made, and this accords with our former ruling, when this case was here before. Objection is made to the first and second instructions, which, in effect, told the jury to find in favor of plaintiff, unless they believed, from the evidence, that the notes sued on were passed upon and adjudicated at the time the allowance in favor of defendant was made; because these instructions farther told the jury, in the event of thus finding for plaintiff, to deduct from the aggregate amount of the notes and interest the amount of the allowance, and bring in a verdict for the residue. We do not see what prejudice these instructions could work to defendant; for plaintiff was entitled to recover, if at all, for the full amount of the notes and interest, while these instructions diminish the recovery by the amount of the allowance. If the plaintiff had recovered the full amount of the notes and interest, it is clear that defendant would not have been able to have enforced his claim against the estate until the larger judgment of the plaintiff was first satisfied, so that the only effect of these instructions, if obeyed by the jury, and it would seem they were, was to accomplish a present adjustment between the parties.

4. PRACTICE: verdict: several counts.

IV. A more serious objection is made to the verdict, which was for $1,197.16, on the ground that the finding is a general one, and not a finding on each count of the petition. For repeated decisions of this court have settled the matter that when the attention of the lower court has been called to a defect of this sort, by appropriate motion, a reversal must occur, if such motion be overruled. But on examination of the motion for new trial, in the present instance, it will be found that, although the ground referred to is distinctly set out in the assignment of errors at general term, yet that the motion does not distinctly specify the ground now urged, the nearest approach to such specification being the fourth clause, that “the verdict of the jury is not warranted by the issues in the case, and is incorrect and informal.” Our statute expressly requires that motions shall distinctly specify the ground whereon they are based (2 Wag. Stat. 1,021 sec. 48.) The object of this is to call the attention of the lower court to the point complained of. For mere matters of exception cannot be noticed here except when “expressly decided” by the lower court (Id. 106 sec. 32; State v. Rucker, 59 Mo. 17; Brady v. Connelly, 52 Mo. 19; Chapman v. White, Id. 179; Burns v. Whelan, Id. 520; Carver v. Thornhill, 53 Mo. 283.) We hardly think, in the light of these statutory provisions and decisions, the motion before us specified with sufficient distinctness the ground now relied on, that the verdict did not contain a special finding on each count. But even if the motion had been sufficiently specific in the particular mentioned, we should be very loth to reverse on that ground, under the particular circumstances of the case at bar. For it seems quite evident that the jury found in favor of the plaintiff on all the counts in the petition, and then, in obedience to instructions, deducted the allowance in favor of the defendant, and gave a verdict for the residue. The amount of their verdict would appear to indicate this. In addition to that, the judgment is evidently for the right party. This is the eleventh year of this litigation; no useful purpose can be subserved by allowing it to continue longer, since the trial below was fairly conducted, and the practical result reached would doubtless be the same were the cause remanded. Taking all these matters into consideration, we do not feel at liberty to take such action as will disturb the judgment of the lower court. For we are expressly prohibited from reversing the judgment of any court, unless believing that error was committed “materially affecting the merits of the action” (2 Wag. Stat. 1,067 sec. 33).

Therefore, we shall reverse the judgment of reversal rendered by the general term, and affirm the judgment of the special term, in favor of the plaintiff.

All concur.

AFFIRMED.

On Motion for Rehearing.

L. F. Parker for the motion.

I. A judgment of a court of competent jurisdiction cannot be attacked in a collateral proceeding for fraud,

but only by a direct proceeding for that purpose. Christmas v. Russell, 5 Wall. 290; Granger v. Clark, 22 Maine 128; Freeman v. Thompson, 53 Mo. 183; Atkinson v. Allen, 12 Vt. 624; McRae v. Matoon, 13 Pick. 53; Krekeler v. Ritter, 62 N. Y. 372; Anderson v. Anderson, 8 Ohio 108; Smith v. Smith, 22 Iowa 516; Smith v. Keen, 26 Me. 411. And then it must be specially pleaded. Whetstone v. Whetstone, 31 Iowa 277; Commonwealth v. Trout, 76 Pa. St. 379; Hulverson v. Hutchinson, 39 Iowa 316; Edgell v. Sigerson, 20 Mo. 494; Kerr, Fraud and Mistake, 365 et seq.; 2 Whart. Evidence, §§ 982, 984; 1 Greenleaf Evidence, §§ 51, 52, 448; 1 Ves. Ch. 287; Sibson v. Edgeworth, 2 Deg. & Sm. 73; McMurray v. Gifford, 5 How. Pr. 14.

II. The verdict is fatally defective, and the defect being patent of record, must be judicially noticed by this court.

PER CURIAM.

Relative to the point that the verdict was a general one, while the petition contained five counts, we have this to say, in addition to what has already been said thereon in the foregoing opinion: Repeated decisions of this court have conclusively established that we will not reverse because there was not a finding on each count, unless the attention of the lower court was specifically called to the matter by appropriate motion, and in the original opinion we cited several authorities to show this. State v. Rucker, 59 Mo. 17; Brady v. Connelly, 52 Mo. 19; Chapman v. White, Id. 179; Burns v. Whelan, Id. 520; Carver v. Thornhill, 53 Mo. 283. All of these cases show that motions must distinctly specify the grounds relied on, and therefore bear with more or less directness on the point in hand, if the statute (2 Wag. Stat. 1021 § 48) in such cases made and provided is to be obeyed; and the case of Chapman v. White is directly in point, deciding, as it does, that if “no such reason was given in the motion for new trial, or in arrest, we cannot consider it here.” These cases, and the section of the statute whereto we made...