Walter v. Scofield

• Decision Date: 19 February 1902
• Parties: WALTER v. SCOFIELD et al.
• Court: Missouri Supreme Court

67 S.W. 276

167 Mo. 537

WALTER v. SCOFIELD et al.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

ATTACHMENT — NOTICE TO TENANT — JURISDICTION — VALIDITY OF SALE — WRIT OF ERROR — TIME OF SUING OUT.

1. Rev. St. 1889, § 2275, requiring writs of error to review a judgment in the circuit court to be sued out within three years of the rendition of the judgment, is to be construed as meaning within three years from the determination of the motion for a new trial, made after the rendition of the judgment, as the judgment is not final until such motion is determined;

and especially is this construction proper in view of section 2248, requiring appeals to be taken during the term at which judgment is entered, which, in order to prevent a denial of the right to appeal as to questions not reviewable in the absence of a determination of a motion for new trial, must be construed to mean the term at which the motion for new trial is decided.

2. The failure of an officer serving an attachment on land, in an action in which defendant is only served by publication, to give notice of the levy to the tenant in actual possession of the land, and to recite the giving of such notice in his return, as required by Rev. St. 1889, § 543, defeats the jurisdiction of the court, and, therefore, the sale of the property is void, and the purchaser and his grantees acquire no title.

Error to circuit court, Cass county; W. W. Wood, Judge.

Suit by Jacob Walter against Ralph E. Scofield and others to set aside a judgment and cancel certain deeds. From a judgment in favor of the defendants, plaintiff brings error. Reversed.

This is a bill in equity to set aside a judgment, upon an attachment, of the Cass county circuit court, in favor of Scofield and against the plaintiff, rendered on the 14th of September, 1894, and also to set aside the sheriff's deed under said judgment, dated January 22, 1895, to George B. Strother, and also a quitclaim deed from Strother to John Scott, for a part of the land, dated January 24, 1895, and also a deed from Strother and Scott to D. M. Colburn for the entire tract, dated January 25, 1895. The circuit court entered judgment for the defendants, and the plaintiff appealed to this court, where, on April 17, 1899, the plaintiff appellant dismissed his appeal, and on the same day he sued out this writ of error.

Chas. H. Winston, for plaintiff in error. Givan & Glenn and Jas. T. Burney, for defendants in error.

MARSHALL, J. (after stating the facts).

1. The defendants move to dismiss the writ of error on the ground that it was not sued out within three years after the rendition of the judgment in the circuit court, as required by section 2275, Rev. St. 1889, the statute in force when this writ was sued out. The judgment of the circuit court was rendered on the 4th of February, 1896. The plaintiff within proper time filed a motion for a new trial, which was continued from time to time, and finally overruled on May 5, 1896. As stated, this writ of error was sued out on April 17, 1899. This was within three years from the date on which the motion for new trial was overruled, but was more than three years after the date on which the judgment was rendered. The point presented for adjudication therefore is, which date is the date of the rendition of the judgment? The defendants rely upon the case of Ham v. Public Schools, 34 Mo., loc. cit. 182, where Bates, J., said: "We think that the time within which the writ of error may be brought should date from the day of the rendering of the opinion, without regard to the motion for a new trial." Bay, J., concurred in this view, and Dryden, J., dissented. The St. Louis court of appeals followed this ruling in Bank v. Reilly, 8 Mo. App. 544. But this view did not long remain the law of this state; for in Riddlesbarger v. McDaniel, 38 Mo. 139, the court, speaking through Wagner, J., held that, if a motion for a new trial was filed, the whole matter remained in the breast of the court so long as the motion for new trial was pending, and carried the whole case over from term to term until the motion for new trial was acted upon, and that "until that result is reached, it cannot be said that the cause is finally determined." In Thomas v. Thomas, 64 Mo. 354, a writ of error was dismissed on the ground that it was prematurely sued out, in that it did not appear that the motion for new trial had been disposed of; and Hough, J., said: "Until the motion to set aside the decree was overruled by the court, there was no judgment from which an appeal could be taken, or which could be reviewed on writ of error." The rule laid down in Riddlesbarger v. McDaniel, supra, was quoted and followed in Givens v. Van Studdiford, 86 Mo., loc. cit. 154, 56 Am. Rep. 421. In State v. Philips, 96 Mo. 570, 10 S. W. 182, this court, speaking through Brace, J., applied the same rule to a motion for a rehearing in the Kansas City court of appeals, and held that "the opinion did not become the decision of the court, upon which a judgment could be entered, until that motion was disposed of"; and this was true, whether the motion was disposed of at the same or at a subsequent term. The rule was stated, and these cases cited and followed, in State v. Smith, 104 Mo., loc. cit. 423, 16 S. W. 415, and by analogy the principle was applied to appeals and writs of error in divorce cases, under section 4510, Rev. St. 1889. The principle that, until the motion for new trial is disposed of, the whole matter remains in the breast of the court, and hence there is no final judgment, was recognized and enforced by Sherwood, J., in McGurry v. Wall, 122 Mo., loc. cit. 619, 27 S. W. 327. The most striking illustration of the rule is found in Mill Co. v. Sugg, 142 Mo. 364, 44 S. W. 249, where the motion for new trial was not disposed of for 14 years after it was filed; and this court, per Barclay, J., held that it kept the whole matter in the breast of the court during all that time, and until it was disposed of there was no final determination of the cause. Scott v. Scott, 44 Mo. App., loc. cit. 603, Ham v. Public Schools, 34 Mo. 181, was relied on, and the Kansas City court of appeals refused to follow it, holding properly that it was in conflict with the later case of Thomas v. Thomas, 64 Mo. 353. That court, per Ellison, J., aptly and forcibly said: "Technically and properly, the judgment of the court, after its decision or after verdict should not be rendered until after the expiration of four days, in which a motion for new trial may be filed, if the term so long continues. Tidd, Prac. 903-905; Lane v. Kingsberry, 11 Mo. 402; Association v. Augustin, 2 Mo. App. 132. And, if such motion for new trial be filed, the judgment is, of course, suspended until it is overruled. In such case and for such purpose, the final judgment spoken of in this statute would not be considered as rendered until the motion for new trial was denied. This view must be correct from the fact that, were it otherwise, and the trial judge should take a motion for new trial under advisement (as is frequently done) for more than sixty days [section 4510, Rev. St. 1889, relating to appeals on writ of error in divorce cases, was under consideration], he might wholly deprive the losing party of a hearing in an appellate court."

In addition to these cases and these considerations, there is another most important reason for holding that the date of the overruling of the motion for new trial must be taken as the date of the rendition of the judgment. Section 2248, Rev. St. 1889, provides: "No such appeal shall be allowed unless: First, it be made during the term at which the judgment or decision appealed from was rendered," etc. It is the settled law in this state that, except as to errors apparent on the face of the record proper, this court will not review errors of the trial court, unless the error is called to the attention of the trial court by a motion for a new trial, and the trial court thus given an opportunity to correct its error. Pogue v. State, 13 Mo. 444; Howell v. Pitman, 5 Mo. 246; Warner v. Morin. 13 Mo. 455; City of St. Louis v. Brooks, 107 Mo. 380, 18 S. W. 22; Bevin v. Powell, 83 Mo. 366; State v. Hitchcock, 86 Mo. 231; Baker v. Railroad Co., 107 Mo. 230, 17 S. W. 816; State v. Burckhartt, 83 Mo. 430; Donaldson v. Thompson, 120 Mo. 152, 25 S. W. 358. This being true, if the appeal must be taken before the motion for new trial is overruled, the appeal would be unavailing; for this court would not review the action of the trial court, that court not having had a chance to correct its own errors. Per contra, if the appeal, to be availing, cannot be taken until the motion for new trial is disposed of, and if the motion for new trial is not disposed of until a term subsequent to that at which the verdict or decision was rendered, and if the date of the rendition of the decision or verdict, and not the date the motion for new trial is overruled, is the date of the rendition of the judgment, within the meaning of section 2275, Rev. St. 1889, then the losing party in the circuit court would be effectually debarred from having the ruling of that court reviewed on appeal; for, if he took the appeal before the motion for new trial was disposed of, he would not get a review because the appeal was prematurely taken, and if he did not take the appeal at the same term at which the verdict or decision was rendered, albeit the motion for new trial was still pending, the appeal would be too late under section 2248. All of which demonstrates that the true date of the rendition of the judgment appealed from, or to correct which a writ of error is sued out, is the date upon which the motion for a new trial is overruled; for that is the time when the final judgment is rendered and the trial court finally acted. The same date controls as to preserving exceptions. To prevent a party from disposing of his property between the date the...