Mack v. Cluck

Darrell Hickman, Justice.

This case started out as a mortgage foreclosure and ended up as an accounting between a widow and heirs.

The widow, Blanche L. Cluck, and her daughter, Margaret Ann Mack, the appellants, bring this appeal from a decision of the Clay Chancery Court. The appellees, Charles Donald Cluck, a son of Blanche, and his wife, were allowed in the lower court to require an accounting of the appellants for farm rent over a period of five years which resulted in a decision favorable to the appellees.

The appellants allege two errors: a previous trial barred the trial court from ordering and having an accounting of farm rent and expenses; and, the trial court erred in approving the accounting.

This is a family dispute arising from the operation of a family farm. The family, consisting of the widow and the heirs of W. A. Cluck, apparently had an agreement that a portion of the family farm would be used for the support and maintenance of the widow. Some of the land was owned individually and some of it was jointly owned by the heirs, subject to a dower right. For a while it was agreed that the appellee, Charles Cluck, would farm the land and see that his mother was taken care of, but a dispute between the parties resulted in a partition lawsuit in the Chancery Court of Clay County in 1971. Charles Cluck and his brother, who is not a party to this lawsuit, filed a lawsuit to partition the W. A. Cluck estate land. The partition request was denied. However, the chancellor allowed the appellants judgments against Charles Cluck in connection with the family agreement. After the 1971 lawsuit, the appellants managed the land by leasing it.

This lawsuit came about because the mortgage on the estate land was not being paid and the mortgage company threatened foreclosure. The appellants claim the appellees were not paying their fair share toward retirement of the mortgage debt. Margaret Mack paid off the mortgage, got an assignment of the note and mortgage and filed a laWsuit with her mother to foreclose the mortgage. The appellees were named as parties and they were asked to pay a pro rata share of the mortgage indebtedness. In addition, the appellants asked that their previous judgments be paid from the proceeds of the foreclosure sale. The appellees counterclaimed stating that an accounting should be made for the rent from the farm land for the five years that the appellants had control of it. Such an accounting would, the appellees claimed, reduce their liability to the appellants. The court allowed the accounting, signed a detailed order, which included all of the income, expenses and the rights of the heirs and widow for the five year period to the farm income, with a net result that the appellees owed the appellants only $505.91, plus the judgments which were already entered.

We cannot say from the abstract of the record that the previous partition suit is res judicata as to an accounting between these parties. We do not know exactly what the family agreement was, nor can we say from the meager abstract provided by the appellants, that the burden has been met to prove res judicata between the parties on this issue. The only evidence of the other lawsuit in the abstract is a copy of the first paragraph of the 1971 decree of the Clay County Chancery Court.

Although the entire record of that previous proceeding was introduced, it was not abstracted and the appellees’ argument that this is a violation of Rule 9 (e) of this court has merit. Therefore, we will affirm as to the first issue on res judicata because of an inadequate abstract of the record.

Necessarily this means that any objection to the right to an accounting ordered and approved by the court has no merit. That leaves only the question of the findings regarding the accounting. The appellants also did not abstract the detailed accounting ordered and approved by the court but the appellees supplied this deficiency. It is set forth verbatim in the appellees’ brief. We find one obvious error in the accounting. We cannot find substantial evidence to support the finding by the court there were 1,000 bushels of beans worth $6,000 held over from 1975. The only reference to 1,000 bushels was by a tenant who estimated the amount of beans to be “about 1,000 bushels”. One of the appellants testified that there were 800 bushels of beans. The only evidence of the market value of the beans was $4.60 per bushel. Therefore, the value of these beans would not be $6,000, as reflected in the accounting and finding by the court, but rather a value of $3,680.00.

The other findings in the accounting are supported by sufficient evidence. We cannot say from the record the chancellor’s findings were against the preponderance of the evidence.

This matter will be remanded only for the chancellor to make the correction regarding the value of the beans and to enter judgment accordingly. In other respects, the decision of the lower court is affirmed.

Modified and remanded.

Harris, C.J., and George Rose Smith and Fogleman, JJ., dissent.