Martin v. Castle

81 S.W. 426, 182 Mo. 216, 1904 Mo. LEXIS 174

• Court: Supreme Court of Missouri
• Decided: May 31, 1904
• Status: Published

Opinion

BURGESS, J.

This is a suit by plaintiff against the heirs of his deceased wife, Mary E. Martin, who was seized during her coverture with plaintiff of an interest in the lands described in the petition, which were partitioned after her death and one hundred and forty-eight and one-half acres of land involved in this litigation, and other lands, were allotted to her heirs, but as to all other lands except said one hundred and forty-eight and one-half acres, plaintiff disclaimed any interest therein at the trial.

The plaintiff and his wife Mary during their coverture borrowed large sums of money and executed their notes to- secure its payment. Several of these notes were unpaid at the time of her death on June 5, 1887.

These notes were assigned to E. S. Castle, Charles F. Booher and Isaac R. "Williams, who obtained three several judgments upon them against plaintiff before a justice of the peace of Nodaway township in Andrew county. Executions were issued by the justice and nulla bona returns made, transcripts were filed in the office of the clerk of the circuit court, executions issued thereon, and all the right, title and interest of plaintiff in said lands, including the one hundred and forty-eight and one-half acres in suit, sold and purchased by Lydia V. Castle, Martha Carrón, Phillip N. Brown, Asa Roy Martin and Samuel F. Brown, and a deed in due form of law was made to said purchasers by the sheriff. The grantees in the sheriff’s deed are in possession of the lands through their tenant.

The purpose of this suit is to recover possession of the land, claiming an estate by curtesy therein; the cause was tried upon his third amended petition. The petition contains two counts. In the first count he says that his notes were purchased by Castle and Booher and Williams nominally and for the use and benefit of the defendants who purchased at the execution sale. That in order to prevent bidding they represented that the plaintiff had no interest in the lands to be sold; that the notes were given for debts of Mary E. Martin and the money used to improve her land, and that by the means above stated they did prevent bidding at the sale of said lands and caused the same to be sacrificed.

It is also alleged that the defendants caused an execution on another judgment obtained by them against plaintiff to be levied on these lands and the lands advertised for sale, whereby it is claimed defendants are estopped to claim any title under the former execution sales.

In the second count it is alleged that the three judgments obtained before the justice of the peace were void because suits were not brought in a township in which plaintiff resided, but were .brought in Nodaway township and service of process had in Rochester- township, and it nowhere appears in the record that Nodaway and Rochester townships adjoined. It also alleges that Booher, Castle and Williams were not the real parties in interest in said judgment, but that they were agents and attorneys of the defendants and were acting for them in obtaining said judgments and in the execution thereon.

The answer admits the marriage of Mary E. Martin, the birth of issue, that Williams is the curator of Asa Roy Martin, and that Booher, Williams and Castle obtained judgments- against the plaintiff, and under them had the land in suit levied upon and sold, and the sheriff made the purchasers a deed therefor. It further alleges that at the sheriff’s sale, plaintiff well knowing the title he had in said real estate and the fact that the same was about to be sold, stood by at said sale, made no objection thereto, saw the property sold and received the benefit of the credit of the purchase price upon the judgments against him; whereby he is estopped from asserting that the judgments, executions, or sale were in any way informal, irregular or void.

The answer of the defendants, by the way of cross-bill, sets forth that their father, Francis M. Brown, died possessed of personal property worth $7,000; that said property came into the possession of Mary E. Martin and was held by her in trust for said defendants, who were heirs of said Francis M. Brown, and that she turned over said property to the plaintiff as trustee for said heirs; that at the time of said marriage Mary E. Martin was possessed of $5,000 of personal property of which said plaintiff took possession upon said marriage without the written assent or permission of said Mary E. Martin; that administration was had upon the estate of said Mary E-. Martin, but no account was taken of the said $5,000; that the plaintiff has converted all of said moneys to his own nse and refuses to account therefor; the answer prays that plaintiff he required-to account for said moneys, and for proper relief in respect thereto. To this part of the answer plaintiff demurred on the gound that “the demands are in favor of the estates of Mary E. Martin, deceased, and Francis M. Brown, deceased, and that defendants have no legal capacity to plead the same, or to maintain any action at law or in equity therefor against the plaintiff.”

Upon the pleadings and proofs the court rendered a decree for the plaintiff as prayed, setting aside the sheriff’s deed, gave him judgment for the recovery of the land and damages to the amount of $1,197.50. On the same day all the defendants except Asa Roy Martin filed a motion for a new trial, which was overruled and severance being granted they appealed.

In due time defendants presented their hill of exceptions to the judge-in which they attempted to save all adverse rulings of the court upon all- matters of exception, which was signed by him, but several objections are made to it by plaintiff and it is necessary to pass upon these objections in the first instance, in order to determine whether the bill and the matters preserved thereby can in fact be determined upon this appeal, for if not, then there is nothing before this court for review except the record proper.

It is said by plaintiff that the bill of exceptions is not properly authenticated or identified, and, if this be true, nothing therein contained can be considered by us on this appeal.

The record proper shows that at the regular November term, 1891, of the circuit court in which the cause was tried, and on the twenty-first day of said month, the following entry was made in said cause on the record of said court, to-wit: “And now again come the said defendants and present a bill of exceptions which being found to be correct is allowed, signed, sealed and ordered to be filed and made a part of the record, and said bill of exceptions is now here filed.” This would seem of itself to be-sufficient to identify the bill and show that it was duly filed, but the original bill was transmitted to this court by the clerk of said circuit court in pursuance of the order of this court, and it shows that it was duly signed by the trial judge, and bears upon its cover the following endorsements, to-wit: “Martin v. Castle et al., Bill of Exceptions Filed, Nov. 21, 1901. C. E. Stevenson, Clerk.” Thus showing that the bill was allowed and signed by the judge, ordered to be filed, and was filed, by the order of court, and in addition thereto it is shown by the indorsement of the clerk that it was filed by him on the same day the record of the court shows it was filed. It is inconceivable to us how there could be any question as to the authentication of the bill, or of its identification under the circumstances.

Plaintiff contends that the additional abstract filed by him shows that at the beginning of the trial plaintiff offered in evidence a number of documents, including various pages from the docket of the justice of the peace, summons, returns of constable, etc., and that when these documents were read in evidence they were called for, but not copied in the bill. Nor are they set out in full in appellant’s abstract, but their substance, merely, stated, hence they can not be considered.

“Thejpraetice of filing a skeleton bill of exceptions in the circuit court has prevailed for many years in this State and calling therein for deeds, depositions and other exhibits, by referring to them and describing them, so clearly that no mistake can be made as to their identity.” [Stern v. Foltz, 152 Mo. l. c. 558; Crawford v. Spencer, 92 Mo. 498; Myers v. Myers, 98 Mo. 262; Tipton v. Renner, 105 Mo. 1; Pitkin v. Shacklett, 106 Mo. 571.] Then when the clerk makes up the transcript of the record for this court he copies in full the documentary evidence referred to and for which blanks have been left in the bill of exceptions. This is the rule where the ease comes here on full transcript. But when the.case is brought here under the provisions of section 813, Eevised Statutes 1899, which practically permits an appellant to make his own abstract a different rule prevails. “Such an abstract is never authenticated by the clerk. It is conclusively presumed to be true unless challenged by a counter abstract as provided by said section. Nothing more is required in an abstract than recital of the substance of the various entries” (McDonald & Co. v. Hoover, 142 Mo. l. c. 493); and if the appellee is dissatisfied with such abstract of the appellant, he may file such abstracts on his part, or any additional abstract; and in case the opposite party shall not concur in such abstract of' record, he shall specify his objection thereto in writing and file the same with the clerk and serve the adverse party with a copy thereof and thereupon the clerk of the appellate court shall forthwith issue and send an «official order commanding the clerk of the trial court to send to such appellate court a certified transcript of that part of the record .so in dispute. The documentary evidence referred to by plaintiff is with respect to the justice of the peace judgments against plaintiff, transcripts of which were filed in the office of the clerk of the circuit court of said county, upon which executions were subsequently issued and plaintiff’s interest in the land in question sold. There does not seem to us to be any substantial difference between defendants’ abstract and respondent’s additional abstract with respect to these matters. So with respect to other matters in evidence which are omitted-from appellants’ abstract; they are suppliéd by the additional abstract of respondent, and of the appellant. So that we have before us not only the record proper, but all matters of exception to the pleadings, and what occurred during the pendency of the suit and upon its trial.

At the request of the parties,the court at the time of rendering judgment in the cause made a finding of facts which, in so far as necessary for-a determination of this ease, are as follows :

“1. Plaintiff was lawfully married' to Mary E. Martin on the thirtieth day of April, 1884, in Delta county, Colorado, and lived with her as her husband until her death; on June 5, 1887, issue was born alivaof said marriage; said Mary E. Martin died March, 1895, intestate, in Andrew county, Missouri, leaving as her heirs at law her children, Lydia V. Castle, Martha Caron, Philip N. Brown, Samuel F. Brown and Asa Roy Martin.

“2. At her death she was the owner in fee of lands in Andrew county, as alleged and described in the petition, a part of which land after her death was partitioned and set apart to defendants as alleged in the petition.

‘ ‘ 3. Asa Roy Martin is a minor, and Isaac R. Williams was at the time of trial his curator. Said minor has since become fourteen years of age and has selected W. R. Nuckols as curator, who has been duly appointed by the probate court, and has given bond and duly qualified.

“4. Judgments were recovered by E.' S. Castle, Charles F. Booher and Isaac R. Williams against plaintiff before J. B. Majors, a justice of the peace of Nod-away township, Andrew county, Missouri, as follows: February 18, 1896, Castle for $107.25; December 14, 1895, Booher and Williams, for $157; December 14, 1895, Booher and Williams for $243.37; and costs in each case. Executions were issued on these judgments and 'nulla bona returns made. Transcripts were filed in the office of the clerk of the circuit court and execution issued thereon to the sheriff, who by virtue thereof levied upon and sold all the right, title and interest of plaintiff in the lands described in the petition, at which sale Lydia V. Castle, Martha Caron, Philip N. Brown, Asa Roy Martin and Samuel F. Brown became the purchasers at the price and sum of $160, and a deed was made by the sheriff to said purchasers in due form of law.

“5. The summons in each case against the plaintiff before said justice was directed to the constable of Nodaway township. On each summons the constable returned that he served defendant ■ therein, plaintiff herein, by reading the same to him (giving date) in Rochester township, Andrew county, Missouri. Said Nodaway and Rochester townships were adjoining townships of Andrew county, and plaintiff herein resided, at the time said suits were brought and service had, in said Rochester township. The constable's return in the said three cases before the justice of the peace do not show that said Rochester township, the place of service, adjoined Nodaway township, the venue of the suits, but pending this suit at bar the justice permitted the constable to amend his return,- showing the township adjoined, notice of the application to amend being -given defendant.

“6. The sale by the sheriff was fairly conducted; the plaintiff was present at the sale and made no objection pending the sale or afterwards before deed was made. The plaintiff was born July 12, 1845.”

The court also at the request of the plaintiff, declared the law to be as follows:

The court concludes the law to be as follows:

“1. Judgments before the justice of the peace were void.

“2. The price for which the lands were sold at the sheriff’s sale was inadequate.

‘ ‘ 3. The plaintiff is entitled to judgment as prayed by him as to the said one hundred and forty-eight and one-half acres with damages, rents and profits.”

The first question presented for solution upon this appeal is as to whether the justice had jurisdiction to render the judgments against plaintiff under which his interest in the land was sold.

The court found that the judgments against plaintiff in this suit under which the lands were sold were rendered by J. B. Majors, a justice of the peace of Nodaway township, Andrew county, and that the summons in each case was directed to the constable of said township, but were served by him on Martin in Rochester township in said county. That said townships were adjoining townships in said county, and that Martin at the time of the service of said processes upon him resided in Rochester township. That the constable’s returns in said three cases before the justice of the peace do not show that Rochester township, the place of service, adjoined Nodaway township, the venue of the suits; but pending this suit at bar the justice permitted the constable to amend his return, showing the township adjoined, notice of the application to amend being given plaintiffs. And held as a matter of law that the judgments before the justice of the peace were void.

By section 3839, Revised Statutes 1899, suits before justices of the peace are required to be brought before some justice of the township in which the defendants, or one of them, resides or in “an adjoining township.” The íeturns of the constable upon the summonses did not, when returned, show that said townships were adjoining and in the same county, but after the returns were amended before the justice they did show this to be the fact.

As was said in Turner v. Railroad, 78 Mo. 578, “The justice had jurisdiction of the cause if the writ was, in fact, properly served on the defendant, whether the return of service made by the officer was defective or not. The service in this case was sufficient, and the return only was defective in not stating correctly the manner of service, and no error was committed by the circuit court in permitting the amendment. ” So fii the case at bar, the returns only were defective in not stating that the townships of Nodaway and Rochester were adjoining townships in the same county — and the justice had the right to permit the amendments in this regard in subservance of the ends of justice.-

The case of Commission Co. v. Estep, 63 Mo. App. 544, was a garnishment proceeding, and after it was begun, which was some thirteen months after garnishment in G-reene county, the justice before whom the proceedings were had permitted the constable to amend his returns so as to make them conform to the fact and thereby show a proper service and proper returns. These amended returns were admitted in evidence by the trial court over the objection of the plaintiff. Ellison, J., speaking for the court, said:

‘ ‘ That an amendment of a return may he made by an officer, so as to make it conform to the fact, is quite well settled. [Fee v. Railroad, 58 Mo. App. 90; Corby v. Burns, 36 Mo. 194; Bank v. Grewe, 84 Mo. 477; Stewart v. Stringer, 45 Mo. 113; McClure v. Wells, 46 Mo. 311.] It is no objection that the amendment is permitted after the suit which the amendment is sought to affect, has been begun. [Fee v. Railroad, and Corby v. Burns, supra.] Nor is it any objection that the amendment is made during the trial of such suit. Nor that the amendment was permitted thirteen months after the original returns were made. Nor, where jurisdiction of the court, in fact, exists, will it be an objection that no jurisdiction appeared except by amendments

“But plaintiff contends that if an amendment can properly he made, yet the proceeding here being before the circuit court of Jackson county, the amendment could not be authorized or permitted by the justice of the peace in Greene county. In the statute, section 6225, Eevised Statutes 1889, relating to justices of the peace, it is provided that the justice may, in open court, amend on motion of either party, any summons, writ, or other proceeding. The amendment here was made at the instance of this garnishee, who was also the garnishee in the proceeding before the justice in Greene county. And these amendments have been permitted in justices’ courts, apparently, without reference to the statute aforesaid, hut simply from the inclination of the courts to subserve the- ends of justice. [See cases of Corby v. Burns, 36 Mo. 194, and Fee v. Railroad, 58 Mo. App. 90.] These amendments have been permitted in the circuit court on appeal, on the ground that they could have been permitted in the justice’s court. [Transier v. Railroad, 54 Mo. 189; Boulware v. Railroad, 79 Mo. 494.] Our opinion, therefore,- is, that the amendment could be made, under the supervision and with the permission and authority of the justice’s court in Greene county, in which the records and proceeding remained.”

' Our conclusion is that the court erred in declaring as a matter of law that the judgments rendered by the justice of the peace were void.

While the court found that the sale of the land by the sheriff was fairly conducted, and that plaintiff herein was present at the sale and made no objection pending the sale or afterwards or before it was made, it also found that the land was worth at that time thirty-seven dollars and fifty cents per acre, and as plaintiff was born July 12, 1845, it ruled as a matter of law the price for which the lands were sold at said sheriff’s sale was inadequate. There was no satisfactory evidence as to what plaintiff’s interest in the land was worth, even approximately, but as the amount that it brought at the sheriff’s- sale was so disproportionate to what was found to be its value by the court, we would not be inclined to reverse the judgment of the court upon that feature of the case alone, but for other reasons indicated in this opinion, we reverse the judgment and remand the cause.

All concur.