Sullivan v. Kirkpatrick , 171 Mo. App. 233 ( 1913 )

ROBERTSON, P. J.

Plaintiff instituted this suit in the circuit court alleging in his petition that the county court of Wright county by appropriate proceedings, in which he was petitioner, at its November term, 1911, ordered a private roadwáy to be opened up across the premises of the defendant before the 15th day of November, 1911, pursuant to the provisions of section 10447, et seq., and that the defendant failed from said 15th day of November, 1911, until the 17th day of January, 1912, to open the road, and sought to recover the penalty provided for in section 10454.

To this petition the defendant filed his answer attacking the proceedings leading up to the final order and alleging that the order in fact made by the court gave the defendant until the 15th day of April, 1912, in which to open up said road, and alleging that by reason of wbat transpired in court on the day the order was made that he was led to believe that he had until that date in which to open said road.

We deem it unnecessary to go into the details of the pleadings as they are sufficiently broad to cover the facts developed at the trial and pass over all the alleged errors in the proceedings leading up to the time the final order for the opening of the road was made and assume for the purposes of this opinion that there were no irregularities prior to that date.

The trial of the case was had to the. court and the judgment, which was for the defendant, recites that a jury was waived by both parties. The plaintiff, after an unsuccessful motion for a new trial, has brought the case to this court.

The testimony discloses that on November 7, 1911, the petition of the plaintiff for the opening of the road was ready for final determination and that said petitioner’s attorney was present in the court room while the court was in session and was advised that the road would be ordered opened and judgment entered therefor accordingly. The plaintiff’s attorney was given the privilege of preparing the order. It appears that, then no time was fixed in which the road should be opened, but after the petitioner’s attorney left the court the attorney for the defendant appeared before the court then in session and called the court’s attention to section 10453, requiring the court in its judgment to specify the time when possession was to be given by the owner, and that thereupon the court announced to the defendant’s attorney that defendant would be given five months from that túne. Said attorney then notified the defendant of the action-of the court and the defendant testified that one of the judges of the. court afterwards upon the street during that day told him he had been given five months in which to open the road. This the judge does not deny but says that if he ever said anything to defendant abont the time for opening the road he does not remember it.

The county clerk and his deputy testified that the court announced to the attorney for defendant that the defendant should have five months. The judges in testifying as to what took place do not deny the announcement which the attorney for the defendant, the cleric and the deputy clerk state was made, but simply say that they do not remember that such a statement was made.

A few days after this business was transacted the court adjourned and was again in session in January of the following year. No minute was made by the clerk at the time of the court’s action relative to this judgment.

Shortly after the adjournment the attorney for the petitioner took the order, or judgment, which he had prepared, to the clerk who hung it up on his files until it should be reached for recording in the regular order of his business. When the clerk reached this judgment and was spreading it upon the records he discovered for the first time that it gave the defendant only until November 15, 1911, in which to open the road. He called the attention of the attorney for the defendant thereto and thereupon that attorney called the clerk’s attention to the fact that he had requested of the clerk that he be permitted to examine the order before it was placed on record and the clerk said he had forgotten it but would change the order in accordance with the announcement of the court. This the clerk did and the order was actually entered giving the defendant until April 15,1912, in which to open the road, but when the court convened in January, 1912, théy ordered the record restored to read as the attorney for the plaintiff; had prepared it.

The attorney for the defendant testified that it was abont two weeks after the adjournment of the November session of court before be beard of tbe way tbe order was prepared by tbe plaintiff’s attorney and submitted to tbe clerk, and tbe defendant bimself testified that it was a month or six weeks before be knew anything different from what tbe judge of tbe court and bis attorney bad advised him wa,s tbe time fixed by tbe court for opening the road.

Tbe plaintiff’s-attorney testified that be met tbe attorney for tbe defendant on tbe street when this matter was pending and that defendant’s attorney asked him what petitioner was going to do about tbe award of damages and that be told tbe defendant’s attorney that under tbe law be could not do anything. Then defendant’s attorney asked him bow long they were going to give defendant to get out and plaintiff’s attorney said they (meaning defendant.) did not need any time as be understood it would not take a day to do tbe work of opening tbe road. If this conversation took place before tbe order was prepared by tbe plaintiff’s attorney there was no intimation given as to what tbe time would be; and if tbe conversation was after plaintiff’s attorney bad prepared tbe order, no information was given by him as to what date be bad placed in the order.

Tbe facts clearly disclose beyond controversy that the defendant was led to believe, and the order was so entered, that be. bad until in April, 1912, to open tbe road and that be did not ascertain that there was any contention that tbe facts were otherwise until long after the time fixed in tbe order prepared by plaintiff’s attorney had expired.

Even conceding for tbe purposes of this opinion that the order as finally recognized by the court should be considered tbe judgment in these proceedings, we do not understand that it should carry with it such verity, sanctity or conclusiveness as that it cannot, under any circumstances, be contradicted, explained, enlarged or modified on evidence which discloses that a rank injustice would be-inflicted upon a party thereto if it were enforced as written. A judgment should not, in our opinion, be made an instrument to defeat the very object it is intended to accomplish, that is, justice. It has been said that any fact which clearly proves it to be against conscience to execute a judgment and of which the injured party could not avail himself in a court of law, will justify relief in equity. [Wilhite v. Ferry, 66 Mo. App. 453, 459; Bassett v. Henry, 34 Mo. App. 548, 556.]

An extensive review of the authorities applicable to this case is found in the opinion in the case of Engler v. Knoblaugh, 131 Mo. App. 481, 489, 110 S. W. 16.

If the defendant in this case was not acting in good faith or was not misled, the testimony offered at the trial was insufficient to convince the trial court of that fact and is not sufficient to lead us to believe the trial court was wrong in its finding and we assume, as did the trial court, that the defendant was led to honestly believe that he had until April in which to open.the road, and that neither he nor his attorney knew differently until after the time in which the plaintiff claimed he was to open the road had expired. We do not believe it would be just to inflict a penalty upon the defendant for a default which- was in no manner brought about by any fault of his.

There are a number of features of this case suggested in the brief of appellant as, for instance, the question of the right of defendant to interpose an equitable defense, and the duty of this court, in the event that the defense is treated as equitable, to review the evidence; but what is said above in this opinion and in the decisions above cited sufficiently covers these points and makes it improper for this court to extend its opinion further.

The judgment of the circuit court is affirmed.

All concur.