Turner v. Edmonston
| Decision Date | 19 May 1908 |
| Parties | A. G. TURNER et al. v. W. A. EDMONSTON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. Jas. D. Barnett, Judge.
Affirmed.
P. H Cullen and Allen Stallings for appellants.
(1) When the judgment defendant fails to give notice of appeal until after a sale of property under the judgment and the judgment plaintiff becomes the purchaser he is entitled to the same protection as any other bona fide purchaser, if the judgment is afterwards reversed, and upon the case being remanded, he again recovers. Frazier v. Crafts, 40 Iowa 110; Gossam v. Donaldson, 68 Am. Dec. 723; Parker v. Andersen, 5 T. B. Mon. 455; Benningfield v. Reed, 8 B. Mon. 105; Yocum v Foreman, 14 Bush 494; Canal Co. v. Gordon, 2 Abb. 488; Den v. Dellinger, 1 Murphy (5 N. Car.) 272; McAusland v. Pundt, 1 Neb. 211; Tuttle v Gates, 24 Me. 396; Stimson v. Ross, 51 Me. 556; Cariell v. Ham, 4 Greene (Iowa) 460; Holmes v. Buckner, 67 Tex. 107; Wood v. Chopin, 13 N.Y. 509; Riley v. Martinelli (Cal.), 21 L. R. A. 33, and note. (2) The purchaser is protected in the case of a sale made during the pendency of an appeal where such appeal did not operate as a supersedeas, even though the purchaser knew of the pendency of the appeal. Marks v. Cowles, 61 Ala. 299; Bank v. Van Meter, 10 B. Mon. (Ky.) 68; Rankin v. Eastin, 2 Ky. L. Rep. 427; Edmonston v. Carter, 180 Mo. 515; Brenden v. Zion Church, 71 Md. 83; Garrittee v. Popplein, 73 Md. 322; Henning v. Punnett, 4 Daly (N. Y.) 543; Hale v. Langford, 60 Tex. 555; 23 Am. and Eng. Ency. Law (2 Ed.), 1011; 3 Freeman on Executions, sec. 345, p. 1975. (3) A writ of error is a new suit and not merely a continuance of the suit the judgment in which it is brought to reverse. Macklin v. Allenberg, 100 Mo. 337; Pierce v. Stinde, 11 Mo.App. 364; Irwin v. Jeffers, 3 Ohio St. 389; Phillips v. Benson, 85 Ala. 416; Gould v. Sternberg, 128 Ill. 510; Maynard v. May, 25 S.W. 879; Benson v. Yellot, 76 Md. 159; Kramer v. Wellendorf, 129 Pa. St. 547; Shannon v. Newton, 132 Pa. St. 375. (4) The modification or partial reversal of the judgment will not affect the title which the execution creditor has acquired at the sale, unless such modification or reversal is upon so material a point or is so great in extent as to destroy the grounds for the sale or make it inequitable for the sale to stand, as would be the case where it declared that the plaintiff was not entitled to recover as much as the sum for which the property was sold. Withers v. Jacks, 79 Cal. 297; Hewit v. Dean, 91 Cal. 617; Yndart v. Den, 125 Cal. 85; Barnhart v. Edwards, 128 Cal. 577; Burcer v. Cady, 49 P. 180; Martin v. Victor Mill Co., 19 Nev. 197; Gaye v. Clapper, 19 Tex. Civ. App. 502; Jesup v. Bank, 15 Wis. 604. (5) Where the execution creditor, after purchasing at his own sale, the judgment not having been superseded by bond, sells the property to a third persons who purchases for value and without notice, and the judgment is afterward reversed on appeal, the prevailing rule is that the title of the purchaser is not affected by the reversal, and that he may retain the property as against the execution debtor. Thompson v. Wooldridge, 103 Mo. 505; Vogler v. Montgomery, 54 Mo. 577; Bartlett v. Glasscock, 4 Mo. 62; McAusland v. Pundt, 93 Am. Dec. 358; Withers v. Jacks, 12 Am. St. Rep. 143; Horner v. Zimmerman, 45 Ill. 14; Gentean v. Wisely, 47 Ill. 433; Puterbaugh v. Moss, 11 N.E. 199.
Robertson & Robertson and F. R. Jesse for respondents.
(1) In this action the land was bought for a nominal sum by the plaintiff under the execution before the writ of error was sued out, and when no appeal had been taken. He bought under the judgment of Roden v. Helm, which was afterwards reversed in the Supreme Court under writ of error. 192 Mo. 71. After Roden had acquired his sheriff's deed, and still before the suing out of the writ of error, Roden conveyed by quit-claim deed to his attorney, W. A. Edmonston, the defendant herein. Edmonston was the attorney of record for the plaintiff in Roden v. Helm et al., and as this record discloses was thoroughly familiar with the Helm title as well as all the proceedings under which the judgment was rendered in the circuit court. Roden's title necessarily depended upon the judgment he had obtained against the Helms. When that judgment was set aside, necessarily his title would fall and it makes no difference that he bought before suing out of the writ of error to set the judgment aside. Gott v. Powell, 41 Mo. 416; Freeman on Ex., secs. 345 and 347; 17 Am. and Eng. Ency. Law, 1019; Freeman on Judgments, sec. 484; 24 Cyc. 65; Vogler v. Montgomery, 54 Mo. 577; Holland v. Adair, 55 Mo. 40; Board of Trustees v. Fry, 192 Mo. 552. (2) The defendant herein, being the attorney of Roden, is not an innocent purchaser, but stands in the shoes of his vendor. Railroad v. Brown, 43 Mo. 294; Board of Trustees v. Fry, supra; Galpin v. Page, 18 Wall. 350; Young v. Schofield, 132 Mo. 660; Freeman on Executions, 347; Stroud v. Casey, 25 Tex. 754; Toogood v. Franklin, 27 Ia. 239; Hayer v. Cassell, 6 C. L. N. 183. The following cases hold that either the party or the attorney purchasing at a sale under the judgment afterward reversed are not protected: Phillips v. Benson, 82 Ala. 500; Smith v. Brittenham, 109 Ill. 450. (3) Upon the reversal of the judgment according to the terms of the mandate, plaintiffs were entitled to be restored to all things they had lost by reason of the judgment reversed. Macklin v. Kinealy, 141 Mo. 131. And all proceedings and subsequent judgments founded upon such judgment are thereby annulled. Colburn v. Yantis, 176 Mo. 670; Smith v. Railroad, 49 Mo.App. 54; Atkinson v. Dixon, 96 Mo. 577; Butler v. Eaton, 141 U.S. 240; Cowdery v. Bank, 139 Cal. 298; McAllister v. Bridges, 40 S.W. 70. (4) Defendant sets up and pleads the motion for restitution which was filed in the circuit court upon the reversal of the judgment, but he omits to notice that that motion was ineffective for the reason that lot thirty-one of Mrs. Sparks' southern addition had been conveyed away to J. O. Edmonston and that it could not be maintained against W. A. Edmonston because he was not a party to the record in Roden v. Helm et al., and for the further reason that it involved restitution by other and different persons than Roden himself, and that Roden not being in possession of the land, it was ineffective as to him for these lands. He further sets up an action brought against W. A. Edmonston and Roden to recover rents accruing prior to the commencement of this action, but wholly overlooks that this last-named action is for a different purpose and is a different action than this ejectment suit. Roden is not a necessary or even a proper party in this ejectment suit, whereas he is a necessary party in the suit to recover the rents and profits. An examination of the motion for restitution and the action for the accounting will disclose different subject-matter and different parties as well and a different purpose in each case than the one before the court. Before another action pending can be taken as a defense, it must be shown that the subject-matter, the parties litigant, and the relief sought in each case are identical, and that the proofs required in each would be the same. Rodney v. Gibbs, 184 Mo. 1; Garland v. Smith, 164 Mo. 1; Callahan v. Davis, 125 Mo. 27.
This cause is now pending before this court upon appeal on the part of the defendants from a judgment of the circuit court of Audrain county in favor of the plaintiffs. The action was one in ejectment for 240 acres of land in Audrain county. The petition was filed in the circuit court on March 30, 1906, and was in the ordinary form in actions of that character. The answer of the defendants consisted first of a general denial; second, there is pleaded the judgment obtained in the case of Roden v. Helm et al., 191 Mo. 71, 90 S.W. 798, detailing the circumstances by which the defendant W. A. Edmonston came into possession of the real estate here sued for; third, the defense is made that the judgment of the Supreme Court reversing the judgment of the circuit court in Roden v. Helm et al., is void; fourth, then defendants plead ownership of the judgment rendered by the circuit court in Roden v. Helm et al.; fifth, the rendition of another judgment is pleaded in favor of the plaintiffs and against the Helms rendered in the original suit of Roden v. Helm et al., after the reversal of the case in the Supreme Court. There is also pleaded in connection with the fifth defense the pendency of a motion for restitution filed in the case of Roden v. Helm et al.; also an action in accounting filed by these same plaintiffs against this same defendant and others to account for the rents received by W. A. Edmonston from said lands accruing between the date of turning over the possession of this land to W. A. Edmonston and the commencement of this ejectment suit.
The history of the litigation involved in this controversy is fully set forth in the case of Turner et al. v. J. O Edmonston et al., decided at the sitting of this court on February 18, 1908, and reported in 210 Mo. 411, 109 S.W. 33. There was a motion for rehearing filed in that case, which was by the court overruled, and learned counsel who represented respondents in that case and who represents appellants in the case at bar, concedes in his motion for rehearing in the former case that this case is a companion case to the case of Turner et al. v. J. O. Edmonston et al., heretofore referred to as being decided by this court. No one can read the records and briefs of counsel representing the appellants and respondents in the case at bar without being convinced that the leading and...
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