Spring v. Giefing , 315 Mo. 525 ( 1926 )

This case is an outgrowth of one tried in a court of a justice of the peace in Buchanan County. The case before us is one begun by the filing of a petition in the circuit court of said county.

The petition is in three counts. Count one is the statutory proceeding to ascertain and determine title to a lot in St. Joseph, Missouri. Count two is in ejectment. The third count is in the nature of a bill in equity, in which it is sought to set aside a sheriff's deed to Lot Five, Block Twelve, in St. Joseph Extension Addition, an addition to the city of St. Joseph, Missouri.

This court will require further detail as to facts, infra. Defendants Giefing and Carson answered jointly. Defendant Berry answered for himself separately.

To get at the character of the third count, which is in the nature of a bill in equity, some preliminary facts had best be stated. On June 9, 1921, Will Berry, one of the respondents herein, filed a suit against Charlie Hartley and Lizzie King before A.J. Gordon, a justice of the peace in Washington Township, Buchanan County, Missouri. Service was had upon both defendants, June 10, 1921. The case before the justice was thus tersely outlined in the statement filed: "To damages to and conversion of one Paige Automobile, July 3, 1919, $300 due Will Berry." We show the character of the action to show that in the event of default there would have to be an inquiry as to damages before final judgment could be entered by the justice of the peace. The summons of the justice (served on June 10, 1921) was made returnable on June 21, 1921. The record of GORDON, J.P., then shows:

"Now on this 21st day of June, 1921, Will Berry, with his attorney Bart Lockwood appears and the evidence heard and Lizzie King duly called came out, but makes default. Hartley case continued to June 29, 1921.

"Now on this 22nd day of June, 1921, comes the plaintiff by Bart Lockwood, his attorney, and defendant Lizzie King by B.G. Voorhees, her attorney, and by agreement the default heretofore taken against Lizzie King is set aside and cause set down for June 29, 1921, 10 A.M.

"Now on this 29th day of June, 1921, this cause coming on to be heard, plaintiff appears and the defendant Charlie Hartley, being duly called, came not and makes default. Continued to June 30 as to Lizzie King.

"Now on this 30th day of June, 1921, this cause coming on to be heard, plaintiff appears with his attorney, Bart Lockwood, and the defendant Lizzie King by her attorney, B.G. Voorhees, and Charlie Hartley with his attorney, W.B. Norris. And the court having heard the evidence and having considered the same, finds that the plaintiff is entitled to recover from the defendant Charlie Hartley in the sum of two hundred fifty dollars.

"It is therefore adjudged by me that plaintiff recover from defendant Charlie Hartley the sum of two hundred and fifty dollars so found as aforesaid, together with the cost of this suit, and that plaintiff have execution therefor.

"It is therefore considered by the court that the plaintiff take nothing for his suit and that the defendant Lizzie King go hence without day and recover from the plaintiff her costs and charges in her defense expended.

"A.J. GORDON, J.P.

"Now on this 11th day of July, 1921, comes Charlie Hartley and files affidavit and bond in appeal. Bond approved and appeal allowed and this case is certified and filed in the Buchanan County Circuit Court with a true transcript of this docket and all original papers in the cause on file in my office.

"State of Missouri, County of Buchanan:

"I, the undersigned, a Justice of Peace for Washington Township, Buchanan County, Missouri, hereby certify the foregoing to be a full, true and complete transcript of all the entries and proceedings in the above entitled cause as the same appears of record on my docket 3 at page 46, and that the papers hereto attached are all original papers on file in my office in said cause. Given under my hand this 11th day of July, 1921.

"A.J. GORDON, Justice of Peace."

Hartley appealed to the circuit court from this judgment, and the plaintiff, Elizabeth Spring, was one of his bondsmen. In the circuit court we have this record in the automobile case of Berry v. Hartley.

"The following entries of record are made in the Circuit Court of Buchanan County, Missouri, as shown by record book 101 of the records of Division No. 2 of said court before the Hon. L.A. Vories, as follows (caption omitted):

"Record 101, page 259. Friday, November 25, 1921, October term, 1921.

"Comes now plaintiff by his attorney and files motion to dismiss appeal.

"Record book 101, page 359. Saturday, January 14, 1922, 12th day of January term, 1922.

"Come now the parties, plaintiff and defendant, by their respective attorneys and the motion to dismiss heretofore filed herein is at this time taken up, considered by the court and the same is by the court overruled.

"Record book 101, page 484. Friday, March 31, 1922, 75th day of the January term, 1922.

"Come now the parties, plaintiff and defendant, by their respective attorneys and the motion to affirm judgment of the justice of the peace is at this time taken up and submitted to the court and by agreement of all the parties herein said judgment of the justice of the peace in the sum of two hundred fifty dollars is affirmed.

"It is therefore ordered, adjudged and decreed by the court that the plaintiff have and recover of and from the defendant and Mrs. Sam Spring and I.N. Carson, Jr., sureties on the appeal bond, the sum of two hundred fifty dollars, together with his costs in this behalf expended, and have therefor execution.

"Record book 101, page 502. Wednesday, April 19, 1922, in vacation.

"Comes now Mrs. Sam Spring, surety herein, and files motion to set aside judgment and to quash execution.

"Record book 101, page 581. Saturday, May 13, 1922, 12th day of May term, 1923.

"Come the parties, plaintiff and defendant, by their respective attorneys, and the motion of Mrs. Sam Spring, bondwoman, to set aside the judgment and to quash execution heretofore filed herein is at this time taken up, considered by the court and the same is by the court overruled.

"Record book 101, page 637. Thursday, June 15, 1922, 38th day of the May term, 1922.

"Comes now Mrs. Sam Spring, surety on the appeal bond, by her attorney and files affidavit for appeal.

"Now here the amount of the appeal bond is fixed by the court in the sum of six hundred dollars.

"Comes now the appellant and presents to the court her appeal bond in the sum of six hundred dollars in due form, filed by Mrs. Sam Spring as principal and Lawrence Brum as surety thereon, which said bond is now here approved and ordered filed.

"And now her appeal is allowed to the Kansas City Court of Appeals.

"MR. BRUBAKER: We offer in evidence the mandate returned from and rendered by the Kansas City Court of Appeals on or about the 6th day of November, 1922, in the case of Will Berry, respondent, against Charlie Hartley, defendant, Mrs. Sam Spring, appellant.

"THE COURT: Let it be considered in evidence.

"Said Mandate is as follows:

"KANSAS CITY COURT OF APPEALS.

"Appeal from Buchanan Circuit Court "October Term, 1922.

"Will Berry .................................... Respondent vs. "Charlie Hartley ............................... Defendant; "Mrs. Sam Spring ............................... Appellant.

"Now at this day, it appearing to the court here that the said appellant prayed the appeal herein, and that the same was granted more than sixty days before the commencement of the present term of this court, and that said appellant has failed to comply with the law and the rules of this court. It is therefore considered and adjudged by the court that the judgment aforesaid in form aforesaid, by the said Circuit Court of Buchanan County rendered, be in all things affirmed, and stand in full force and effect. And it is further considered and adjudged by the court that the said respondent recover against the said appellant costs and charges herein expended, and have therefor execution."

Thus it appears that Mrs. Spring fought the case through the circuit court, and appealed to the Kansas City Court of Appeals, but there permitted the judgment to be affirmed for failure.

From the record no final judgment in the court of Gordon, J.P., was entered against Hartley until June 30th, and the appeal bond was filed on July 11, 1921, which was Monday. It was filed on the 11th day after judgment, but the 10th day fell upon Sunday. Under the circuit court judgment in case of Berry v. Hartley, an execution was issued and the said Lot 5, described supra, was sold, and deeded to respondent E.G. Giefing. This sale and deed Mrs. Spring seeks to set aside for divers reasons set forth in this third count of her petition. The circuit court found against her upon the issues involved, and the present appeal here is the result. The details of her alleged equitable claims (third count of her petition) can best be noted in the course of the opinion. This is but a general outline.

I. One ground of the bill in equity (third count of petition) is that the appeal from the justice of the peace was not taken in time, and the bond filed after expiration of the time toTimely appeal. After the judgment of the circuit court wasAppeal. entered, Mrs. Spring (plaintiff here) filed her motion to set aside the judgment in the Berry case, and quash the execution. It will be presumed that she attacked the judgment from all angles. At least it was her duty to call the circuit court's attention to the fact (if it was a fact) that the appeal from the justice was out of time, and therefore the circuit court acquired no jurisdiction, and being without appellate jurisdiction its judgment was void.

But the appeal was not out of time. The record of the justice, which we have set out in full, shows a timely appeal. The court judicially knows the days of the week. There was no final and appealable judgment until June 30th, and the appeal was taken on Monday, July 11th. The defendant Hartley had ten days in which to appeal, and it is not denied that the tenth day fell upon Sunday. In such case the following Monday would be within the statutory time. Where the last day within which to do an act falls upon Sunday, then the following Monday is within time. [Bank v. Williams, 46 Mo. 17; Keys v. Keys, 217 Mo. l.c. 64, and cases cited.]

This contention of the appellant must fail, and this probably accounts for the failure to prosecute the appeal of Mrs. Spring in the Court of Appeals.

The validity of the circuit court judgment in Berry v. Hartley, being affirmed by the Court of Appeals, is res adjudicata, as to all matters raised against it, or as to all matters which could and should have been urged against it. This is the fixed rule in the doctrine of res adjudicata.

II. In addition to what we have said relative to the motion of Mrs. Spring to set aside the circuit court judgment in the case of Berry v. Hartley, it should be added that there is oral evidence (and this evidence is not objected to for any reason) that this motion was based upon the ground that the appeal was not taken in time. I.N. Carson, testifying as a witness, among other things said: "Then Mr. Gaddy, on the part ofMatter Mrs. Spring, filed a motion to quash on the groundActually that the appeal had not been taken in time. ThatLitigated. motion was argued before the court. Motion to quash execution." The parties might have objected and required the production of the best evidence, i.e. the motion itself, but this was not done and the oral evidence admitted without objection. This, with the record of the circuit court showing the filing, by Mrs. Spring, of a motion to set aside the judgment and quash the execution, makes the validity of the judgment res adjudicata, as above stated. The record shows the adjudication of the questions in the circuit court, and the affirmance of that action by the court of appeals. In the present status of the record, the contents of the motion of Mrs. Spring is as thoroughly shown as if the motion itself had been introduced in evidence.

III. The chief contention is that Mrs. Spring was induced to sign the bond by misrepresentations. All this was before the court upon oral testimony or depositions — mostly oral testimony. The witnesses were therefore before the chancellor nisi and he had the peculiar opportunity of observingMisrepresentations. their demeanor upon the witness stand. He found against the plaintiff upon this question. Of course we are not bound (in actions in equity) by such finding, but we do give due deference to the findings of a chancellor (upon questions shown by oral evidence) because of the peculiar advantage which he has of judging the credibility of the witnesses. The finding upon this question is amply supported by evidence, and we will not disturb it.

But we will go further. Hartley signed the bond, and he, Carson and Mrs. Spring's son-in-law, Murphy, went to see Mrs. Spring about signing it. Hartley and Murphy were friends. In fact Hartley worked for Murphy. Carson says that Mrs. Spring and Murphy were to sign the bond, but at the last minute the justice of the peace refused to take Murphy upon the bond, and he, Carson (then, on appeal, attorney for Hartley), signed it. But leaving this aside, the substance of the evidence for plaintiff is to the effect that Carson told Mrs. Spring that he would see that she would not lose by so signing. The plaintiff's evidence (Mrs. Spring) upon this question reads:

"Q. Now, on July 11th when you signed this bond what did Mr. Carson tell you to get you to sign it? A. He told me there is no harm for me. I said ``I don't want no trouble.' He said, ``There won't be any trouble for you at all; you don't need to worry about it; I take care of this.'

"Q. What did he say about it being necessary for two to sign the bond? A. Yes, he said it needed two to sign and if I sign it won't harm me at all.

"Q. What did he tell you about having property, if anything?

"MR. LOCKWOOD: We object to that.

"THE COURT: I will hear the testimony. As between themselves it might be important.

"Q. Did Mr. Carson tell you he was the attorney for Mr. Hartley? A. Yes sir.

"Q. What did he tell you about the chance of winning the case so far as Hartley was concerned? A. He said there isn't any harm at all; he will take care of it.

"Q. Did he make any guarantee that you would not have to pay any money? A. He said I don't have to be responsible; he take care of that.

"Q. When you signed this bond had he already signed it? A. I can't tell; I can't see good enough. I signed it where they told me to sign it and I can't tell you if his name was on it or not.

"Q. But you know he was to sign it? A. Yes."

Other testimony (daughter and son-in-law) for plaintiff upon this question goes no further. There is shown no false representation as to an existing fact. If it shows anything (which we do not here rule) it would be a mere oral promise to protect her from loss. Further, Berry, who was the chiefly interested party in this appeal bond, had nothing to do with Mrs. Spring. He tried to get the appeal dismissed because the bond was filed out of time. At least this is a reasonable inference from the record.

So under all the circumstances we will not disturb the findings of the lower court to the effect that no fraud was committed upon plaintiff in the signing of the bond.

IV. The court found, and the record shows, that the property was levied upon and sold in the usual way, with a number of persons at the sale. The executions were issued by the direction of Mr. Lockwood, who was attorney for Berry from first to last. There were three executions issued. The first was held up by reason of the appeal to the Court of Appeals. The second one was seemingly held up in order to give Mrs. Spring (then represented by her son-in-law, Murphy) a chance to pay, until it was too late for a sale. Murphy was trying to arrange to pay the judgment, or so represented. A third execution was then ordered by Mr. Lockwood, and a levy made and notice of sale given. The trial court indicated throughout, and not without substantial grounds, that Murphy had induced both Mrs. Spring and Carson to sign the bond. Lockwood says that he was familiar with all the facts, and ordered Mrs. Spring's property to be levied upon and finally sold. He says after he had tired of worrying with Murphy and Mrs. Spring, and had the property advertised, he told Carson of the date of sale, and that if the property did not bring the debt and costs, he would look to him for further and full payment. Carson, as to this point, corroborates Lockwood. The defendant Giefing is the widowed sister of Mr. Carson, one of the defendants. He told his sister of the situation, and she having some means, told Carson to buy in the property for her. There was a question as to whether Mrs. Spring held a fee or a life estate under the will of her husband. It depends upon the construction of her husband's will. The lawyers seemingly thought that only a life estate passed, and Mrs. Spring was sixty-six years old. Mrs. Spring had undertaken to mortgage her interest, so after some bidding Carson bought in the property for his sister for the sum of $340.

This third count of the petition charges a conspiracy between the several defendants to cheat plaintiff out of her property. There is no question that she knew her property would be sold if she did not satisfy the debt. The evidence totally fails to show a conspiracy of any kind. The record is so barren of evidence upon this question, that it really should not be dignified by further discussion.

The judgment of the trial court is the only one which could have been entered under all the facts, and it should be affirmed. It is so ordered. All concur.