text:
    AULT, Appellant, v. BRADLEY, Administrator, et al.
    Division Two,
    December 12, 1905.
    1. JUDGMENT: Change Without Notice. Any alteration or change in a judgment by the court without notice to the party affected thereby, is not binding on such party, although the court making the alteration may have jurisdiction of the subject-matter and may do so at the same term.
    2. -: -: Administration: Change in Agreed Entry. Plaintiff presented in the probate court his claim against the estate of decedent, which was allowed, and plaintiff’s attorney prepared the judgment to be entered, and submitted it to the administrator’s attorney who approved it, and in the presence of the probate judge, the plaintiff and the administrator and their respective attorneys agreed that the order should be entered as prepared, and thereupon plaintiff and his attorney departed, and afterwards, without notice to them, the administrator’s attorney, at his procurement, interlined in the prepared form a provision that the allowance was not to be paid out of the assets of decedent’s individual estate until “all debts of the said deceased which are hot also allowed against” the partnership estate of which decedent was a member “be first paid.” Held, that this alteration is not binding on plaintiff, was without justification in law, and cannot be too strongly condemned.
    3. -: -: -: -:No Injury. But where plaintiff was not injured by such alterations in the judgment, the court will not do the idle thing of decreeing such alterations void.
    4. -: -¡Partnership Assets: Priorities. Notwithstanding notes given to plaintiff by decedent and his partners were signed by them individually and were several and joint liabilities against them, yet if the money went into the partnership, the partnership assets should be applied to their payment before the plaintiff should be permitted to have them paid out of the assets of the individual estate of one of the deceased partners. And plaintiff by having them allowed against the partnership estate, thereby admits that they were partnership debts.
    5. -: -: -: Material Alteration in Judgment. An unauthorized interlineation in the judgment allowing the notes as a demand against the individual estate which “provided that all debts of the said deceased which are not also allowed against said partnership be first paid,” did not injure plaintiff, because creditors of a decedent have the exclusive right to have their debts first satisfied out of the individual property of the individual partners, and partnership creditors have an exclusive claim upon the partnership assets, and hence plaintiff’s legal rights remained the same after such interlineation as they were before.
    Appeal from Greene Circuit Court. — Hon. Jas. T. N.eville, Judge.
    Affirmed.

      McGill (& Lindsey, Lavnson & Ghristenden and W. D. Tatlow for appellant.
    (1) After a final judgment in the case the parties are out of court, and the necessity for their appearance is presumed to be at an end, and if the opposite party would take any further steps he must give his adversary notice and an opportunity to be present and to be heard. Caldwell v. Coleridge, 9 Mo. 358; Parker v. Johnson, 22 Mo. App. 516; Railroad v. County, 55 Mo. 162. The same view is taken by other courts. Wright v. LaClare, 3 Iowa 221; Delaplane v. Hitchcock, 6 Hill 14; Chester v. Miller, 13 Cal. 558; Perkins v. Hayward, 132 Ind. 95; Murphy v. Farr, 11N. J. L. 186; Freeman on Judgments, sec. 142. (2) It has been expressly held by this court that where the final settlement is approved by reason of the fraudulent and collusive arrangement between the probate judge and the administrator, it will be set aside at the instance of the heirs, even though such fraud was discovered in time to appeal therefrom and the heirs did appeal therefrom and afterwards voluntarily dismissed their appeal. Baldwin v. Davidson, 139 Mo. 118; Baldwin v. Dalton, 168 Mo. 20. (3) Even in an action of law, where a claim has been allowed against an estate, not as an unconditional allowance but as an allowance of a judgment of offset, which was afterwards fraudulently changed so as to show an unconditional allowance for the amount of the claim, such fact may be shown by parol in an action involving such allowance. Sweet v. Maupin, 65 Mo. 65.

      George Hubbert with White, Clay & Sheppard for respondent.
    (1) The appellant can no more rid himself of the consequences of his judgment of the probate court, that his claim was the debt of the partnership estate of Walters & Huddleston, than he could evade the estoppel by judgment of any other court of record. The existence of the partnership cannot be questioned. That is conceded on all hands. That the demand, allowed and classified against the partnership estate, was identically the same claim that was allowed against the Walters estate, is beyond dispute. The judgment of the probate court thereon is as absolute estoppel as any judgment of any court of record can be: Smith v. Hanger, 150 Mo. 444; Covington v. Chamblin, 156 Mo. 587. The fact that the partnership debt was several as well as joint, could not affect the question as to its being primarily the debt of the firm; it must be treated and dealt with as such, for all purposes of this case. Burns v. Mason, 11 Mo. 478; Level v. Farris, 24 Mo. App. 441. Even if the judgment against the partnership estate were wrong, it cannot be set aside, nor. its force incidentally ignored, in this collateral case. Bed-ford v. Sykes, 168 Mo. 8; Johnson v. Stebbins, 167 Mo. 325. And the principle is directly applicable to partnership estates in course of administration in probate courts. In re Judy.’s Est., 166 Mo. 13. (2) One of the inevitable consequences of that judgment was, the exclusion of the creditor of the partnership estate of Walters &' Huddleston, whose demand had been reduced to judgment against such estate, from participating in the distribution of the individual assets of the single deceased partner, Walters, until all the exclusively individual demands allowed have been satisfied. Hundley v. Farris, 103 Mo. 78; Hargadine v. Sapping-ton, 105 Mo. App. 655. The true relations between parties to promissory notes may be shown, even by parol testimony. 2 Jones Evi. (1 Ed.), sec 507; Abb. Tr. Ev. (2 Ed.), sec. 27; Browne, Par. Ev., sec. 83; George on Partnership, sec. 36; Bish. Cont., sec. 1149; Tilford v. Ramsey, 37 Mo. 565; Bank v. Bayless, 41 Mo. 287; Kahn v. Overtstolz, 82 Mo. App. 235; Bracken v. March, 4 Mo. 74; Braches v. Anderson, 14 Mo. 441. (3) The extension and perfection, of the record entry, of the judgment of the probate court, against the Walters estate, was well within the law and the powers of that court; it was neither fraudulent nor injurious to appellant. In the ordinary course of procedure, the plaintiff must have known that the full record entry of the judgment would be read the following day after the judgment was rendered; and it follows that all parties are chargeable with full notice thereof, in the absence of any fraud or device to keep them from attendance and knowledge. R. S. 1899, secs. 1586,1594; Maupin v. Franklin Co-., 67 Mo. 329. But the probate court had full power over its judgment during the entire term; and it would have been competent for it to modify its terms, even after the full entry had been spread upon the record. Aull v. St. Louis Co., 149 Mo. 1; Rotman v. Schumacker, 94 Mo. 139. The written draft for record entry cannot be held to have been the judgment of the court, until it was spread upon the record or minutes; and that was not done until the additions complained of were made; so there was no judgment of the court except as entered in writing on the official court book; if the draft had been written by the judge himself as an opinion that the form was proper, it was not a judgment until entered. Hewett v. Steele, 118 Mo. 473; Taylor v. Scherpe, 47 Mo. App. 257. Yet we need not rely upon the change for the effect we claim for the judgment of the probate court, even according to the entry as originally drawn, for it implied all that the change could accomplish; for judgments, like other contracts, bear upon their face, by implication, the law of their being and may not be separated therefrom. State v. Gilmore, 141 Mo. 512; Medlin v. Platte Co., 8 Mo. 235; Railroad v. Holschlag, 144' Mo. 257; Mobley v. Nave, 67 Mo. 549; Milan v. Pemberton, 12 Mo. 59'8; Reed v. Nicholson, 158 Mo. 631. A judgment of court being a contract of record, must include, as well as be construed by, the law thereof; every contract includes, as one of its essential elements, the law controlling at the date of its making; by which its terms are enlarged, qualified or limited, through construction. Bishop, Cont., sees. 437, 439; MeElory v. Ford, 81 Mo. App. 500; 4 Blackstone, Com., *465; St. Louis T. F. Co. v. Jackson, 128 Mo. 1.
   GANTT, J.

This is an appeal from the judgment of the circuit court of Greene county on a motion for judgment upon the pleadings in the above-entitled cause. The action was commenced on the 29th of June, 1901, in the circuit court of McDonald county, Missouri, and the venue changed to Greene county. As the judgment was rendered upon the pleadings, it becomes essential that they should be reproduced in full. The petition, omitting caption, is as follows:

“Now comes the plaintiff in the above-entitled cause, and for his cause of action states that on the 23rd day of December, A. D. 1899, W. T. Walters, now deceased, together with A. C. Walters and G. H. Huddleston, executed their three several promissory notes to the order of the Southwest City Bank, copies of which said notes are fully set out hereinafter; that the said Southwest City Bank is a private hank doing business under the laws of the State of Missouri; that the plaintiff, A. F. Ault, is the sole proprietor thereof; that on the -- day of January, 1900, the said W. T. Walters departed this life intestate; that the defendant, Frank Bradley, is the - duly appointed, qualified and acting administrator of the estate of said W. T. Walters, deceased, and the plaintiff, A. F. Ault, on the 18th day of February, A. D. 1901, during the regular February term, A. D. 1901, of the probate court of McDonald county, Missouri, filed and duly presented to said court his claim against the above-mentioned estate of W. T. Walters, deceased, which claim was founded upon the three certain promissory notes above mentioned, and which notes amounted in the aggregate, including principal and interest, to the sum of $5,142.39; that prior to the time said claim was filed and presented, to-wit, on the 19th day of December, A. D. 1900, said Frank Bradley, as administrator of said estate, waived service of notice in writing indorsed upon the back of said claim; that on the said 18th day of February, A. D. 1901, at the hearing in said probate court, upon said demand, the plaintiff herein appeared in person and by attorney, and the said Frank Bradley, as administrator aforesaid, also appeared in person and by attorney, and the said probate court rendered judgment in favor of the plaintiff herein against Frank Bradley, as the administrator of the estate of W. T. Walters, deceased, on said claim, for the aforesaid sum of five thousand one hundred and forty-two dollars and thirty-nine cents, and the judge of said court thereupon entered in his minute book the following entry, to-wit: ‘Est. of W. T. Walters, deceased, demand allowed, $5,142.39,’ and thereupon the judge of said probate court entered upon the back of said claim the following certificate of allowance, to-wit: ‘I hereby certify that the sum of five thousand one hundred and forty-two dollars and thirty-nine cents, was allowed on the attached demand of the fifth class of demands and costs, on the eighteenth day of February, A. D. 1901. J. P. Caldwell, Judge of Probate.’ And the said judge also entered in the abstract of demands the following entry: ‘Allowed, February 18th, 1901, A. F. Ault, notes, class 5, $5,142.39.’

“That said entry is on page 83 of the abstract of demands, in said probate court, and in the list of demands allowed against the said estate of W. T. Walters, deceased; that on the same day on which said claim was allowed, and immediately after the allowance of the same, the attorney for plaintiff, A. F. Ault, at the request of the probate judge, prepared an entry for the permanent record, allowing said claim and submitted the same to the counsel for the administrator, Frank Bradley, and the said attorney for the administrator expressed himself as satisfied with the same, and went in company with the attorney for the plaintiff herein, and the said entry was submitted by both of said attorneys to the probate judge, both of said attorneys then and there declaring in the presence of the court that the judgment entered from said copy would be satisfactory to their respective clients, and the court then and there approved the same as its judgment, and announced its approval to the said attorneys at the time; that on some day thereafter, and prior to the time the judgment entry was spread upon the permanent records of said court, and in the absence of the plaintiff herein or his attorney, and without notice to either of them, some person, that is to say, the attorney for the defendant Bradley, and the attorneys for the defendants McKinney and Jones, took said entry for the record from the office of the judge of the probate court and fraudulently and with design to hinder, defraud and delay the plaintiff herein, and to deprive him of any benefit from said estate, on account of the allowance of said claim, so altered said record entry by interlineations and modifications as to change the entire meaning, effect and purport of said entry; that-said persons then delivered said copy for entry, together with the interlineations and modifications, to the judge of the probate court, representing to the said-judge that the interlineations and modifications were not such as to change the substance of the entry agreed upon for the judgment of allowance, and thereby induced said judge to enter the same upon the record of the probate court, with such alterations and modifications ; that said copy as altered and modified ’is copied below, as entered upon the permanent record by said judge, with the alterations and additions indicated by underscoring in red ink.

“Said entry is found in the records of the probate court, in Book ‘E’ at pages 242, 243 and 244, which said entry is in words and figures as follows, to-wit:

“ ‘February 18, 1901. Estate of W. T. Walters, deceased.

“ ‘A. F. Ault, Plaintiff, v. Frank Bradley, Administrator of said estate, Defendant. — Demand allowed.

“ ‘ Now comes the claimant, A. F. Ault, and presents to the court in open court, for allowance against said estate, a demand for the sum of $5-,142. 39', founded on three notes, of which the following are copies:

“ ‘7188. $2200: Southwest City, Mo., Dec. 23, 1899.

“ ‘Ninety days after date we or either of us as principal promise to pay to the order of the Southwest City Bank, twenty two hundred and 00:100 dollars, for value received, with interest at the rate of eight per cent per annum after maturity until paid. And we hereby consent that by payment of the interest in advance this note may be extended.

“ ‘1. W. T. Walters, 2. A. C. Walters.

3. Gr. H. Huddleston.

“ ‘Due March 23rd, 1900. No. 1822.

“ ‘No. 7437. $1596.00. Southwest City, Mo., Dec. 23rd, 1899.

“ ‘Ninety days after date we or either of us as principals, promise to pay to the order of the Southwest City Bank fifteen hundred and ninety-six and 00-100 dollars, for value received, with interest at the rate of eight per cent per annum after maturity until paid. And we hereby consent that by payment of the interest in advance this note may be extended.

“ ‘1. W. T. Walters,

2. A. C. Walters,

3. G. H. Huddleston.

“ ‘Due March 3rd, 1900. No. 7828.

“ ‘No. 7187. $1,000.00. Southwest City, Mo., Dec. 23rd, 1899.

“ ‘Ninety days after date we or either of us as principal, promise to pay to the order of the Southwest City Bank, one thousand and 00-100 dollars, for value received, with interest at the rate of eight per cent per annum, after maturity until paid. And we hereby consent that by the payment of the interest in advance this note may be extended.

“ ‘1. W. T. Walters,

2. A. C. Walters,

3. Gr. H. Huddleston.

“ ‘Due March 23rd, 1900: No. 7821.

“ ‘And it appearing to the court that said administrator had on the nineteenth day of December, 1900, waived service of notice for allowance of said claim, and the said A. F. Ault, having made affidavit that to the best of his knowledge and belief he had given credit to the estate for all payments and offsets to which it may be entitled; that the balance claimed is justly due, and the court having heard the evidence, adduced by the claimant in proof of his demand, it is therefore ordered to be allowed against said estate, to the amount of $5,142.39, and that said claimant, A. F. Ault, have and recover of and from Frank Bradley, administrator of the estate of W. T. Walters, deceased, said amount above mentioned and allowed, but to be paid only as below mentioned, and that said claim be and is by the court assigned to the fifth class of demands, and that said administrator pay said claim out of the assets that are in Ms hands or that shall come into his hands thereafter, provided that all debts of the said deceased which are not also allowed against said partnership estate be first paid, and that he shall pay the costs of this proceeding taxed at $2. And it is further ordered by the court that the claimant, A. F. Ault, shall credit this judgment with all sums of money received by Mm on this claim and judgment against the partnership estate of Walters and Huddleston, that have been allowed by this court against said partnersMp estate, which said partnership estate is primarily liable to pay said notes and claim, which is, hereby adjudged not liable to be paid out of the assets of this individual estate imtil the individual debts herein allowed shall first have been satisfied out of said assets.’

“That the plaintiff herein resides at a distance of twenty miles, and Ms said attorney resides at a distance of twenty-five miles, from Pineville, the county seat of said county, where said probate court is held; that acting upon the assurances of the judge of the probate court that the plaintiff’s demand had been allowed without any restrictions and assigned to the fifth class of demands, and that the said court had approved the copy prepared and agreed upon by said attorneys, as its judgment, and would cause the same to be entered upon the permanent records of the probate court, both the plaintiff and Ms attorney departed for their homes, without then or at any time thereafter having any notice, from the court or from the administrator, or any other person, that said probate court would thereafter, on any subsequent day, attempt to hold any further hearing, upon said claim, or to alter, change or modify its judgment; that the knowledge that the probate court had so attempted to alter, change or modify its judgment, came to the plaintiff and his attorney for the first time long after the court had taken action changing, altering and modifying the judgment herein, and long after the expiration of the time in which an appeal could have been taken under the provisions of the statutes; that as soon as the plaintiff and his attorney ascertained what action had been taken by the judge of the probate court, the plaintiff .took immediate steps to bring the matter to the attention of the said probate court, and requested the court to expunge from its records the said additions, modifications, alterations and interlineations, and the said probate court refused so to do; that the plaintiff is informed and believes that the action of the probate court in changing, altering and modifying its said judgment was taken without any hearing, and without the introduction of any evidence whatever; but purely at the instance of the said person who made such alterations, as hereinbefore described; that said person, the plaintiff is informed, and believes, was acting in the interest of persons who had also had claims allowed against said estate, for the purpose of preventing a legal apportionment of the assets of said estate among the creditors; and especially for the purpose of preventing this plaintiff from securing any benefit whatever from said estate until all other claims allowed against said estate had been paid in full; that claims other than that of the plaintiff herein had been allowed against said estate, amounting in the aggregate to such a large sum that if they all be paid in full before anything is paid to the plaintiff upon his demand therewill be only a very small amount, if anything at all, left in the hands of the administrator to be applied towards the payment of the plaintiff’s said demand; that the notes upon which said demand of the plaintiff is based were the individual notes of W. T. Walters, A. C. Walters and Gr. H. Huddleston; that the two last named are utterly insolvent.

“Whereupon, the plaintiff prays the court that upon a finding of the facts as above set forth, it be adjudged and decreed that the additions, alterations, modifications and interlineations written into said judgment entry are void, that they be annulled and held for naught, that they be stricken out and expunged from the said judgment of the probate court, and for any and all other relief to which the court may find the plaintiff entitled.”

At the August term, 1901, W. E. Jones and A. J. McKinney filed a motion in said McDonald court to be made parties to said action and to be permitted to plead to plaintiff’s petition, on the ground that they were creditors of the individual estate of W. T. Walters, deceased, which motions were sustained, and thereupon the plaintiff filed his motion to set aside the order allowing Jones and McKinney to become parties defendant, on the ground that said Jones and McKinney were made parties without notice to the plaintiff, and because they were not necessary or proper parties to the determination of his action. At the said August term the defendants Jones and McKinney filed their joint answer to said petition which is in words and figures as follows, omitting caption:

“Defendants Jones and McKinney, for separate answer to plaintiff’s petition herein, deny each and every allegation in the same, saving and excepting that the probate court of McDonald county did adjudge, make and enter of record its judgment, order and allowance of the plaintiffs ’ demand against the estate of W. T. Walters, deceased, in the form and words set out in the plaintiff’s petition purporting to copy the same as actually entered and written of date February 18, 1901.

“Defendants further say that their co-defendant, Frank Bradley, as the duly appointed and qualified administrator of the estate of W. T. Walters, has also given bis bond, with sureties approved by tbe said probate court, and has been and is duly qualified as tbe administrator of tbe partnership estate of Walters & Huddleston, a firm composed of the same W. T. Walters (now deceased) and One Gr. H. Huddleston, and that be bas and yet bas tbe partnership aforesaid in bis bands, and bas been and is administering tbe same under tbe jurisdiction and control of tbe said probate court along with, but as distinguished from, tbe individual estate of tbe said deceased Walters, each of which estates consists of lands, tenements, personalf: property, money, notes and accounts, and both of: which estates are being converted into cash assets to-pay debts and demands allowed by said court against said estates respectively.

“That the whole assets of each and both of said estates are not sufficient in amount or value to pay off or satisfy said debts and demands, debts and assets thereof being as follows: Debts of the individual estate of the fifth class amount to $ ----- and the whole assets applicable thereto amount to $--- -; debts of said partnership estate amount to $---, so that both estates are insolvent.

“That these defendants are creditors of tbe said individual estate of W. T. Walters, deceased, and their claims and demands have been allowed by tbe said-probate court and adjudged to be paid by said administrator out of tbe assets of said estate in tbe fifth class of such demands, as follows: W. E. Jones, on note against tbe deceased of $296.88, and A. J. McKinney on note against deceased of $2,883.38, both bearing interest, and defendants are interested accordingly in tbe estate, and in this case wherein is involved tbe application and distribution of the assets and effects of said estate, and in the issues presented affecting the number and the amount of demands that may be found entitled to payments, pro rata, out of the assets of said individual estate whereby the amounts lawfully due defendants might be materially diminished.

“That the plaintiff’s claim and demand is based upon and was in fact debt or debts of the said partnership and primarily chargeable against and payable out of the assets thereof; and the same was by plaintiff first exhibited to the said administrator as such on the 19th of December, 1900, and the self-same notes described in plaintiff’s petition, with the plaintiff’s demand, based thereon, were presented by plaintiff to the probate court, against the said partnership estate, and the same was adjudicated and allowed by the said court in plaintiff’s favor February 18th, 1901, in the sum of $5,142.39, to be paid out of the assets of said partnership estate, which judgment was duly made and entered on the record of said court at the said time with the allowance of the same demand against the individual estate though written first on said record at plaintiff’s instance, copy of which said demand, as allowed against said partnership estate, with plaintiff’s affidavit in support of the same, first .filed herein with answer of W. E. Jones and A. J. McKinney are adopted to be hereunto annexed as ‘Exhibit A.’

“That plaintiff has voluntarily elected to present his said demand as a claim and debt of and against said partnership estate, and he has reduced the same to judgment of allowance against said estate, out of which he has been paid part of said debt, whereby he is estopped from claiming otherwise in this case.

“Defendants pray that plaintiff take .nothing by this action, that they have judgment for costs expended herein and that all defendants go hence without day.”

“Exhibit A” attached to said answer, is as follows, to-wit:

“exhibit a. — demand against partnership estate.

“The estate of Walters & Huddleston, late partnership, composed of W. T. Walters and Gr. H. Huddleston. Frank Bradley in charge of the partnership effects of said late firm as administrator of W. T. Walters, deceased, to A. F. Ault, Dr.

“On three promissory notes dated Dec. 23, 1899, payable to the order of the Southwest City Bank ninety days after date, and bearing 8 per cent interest from maturity until paid and executed by W. T. Walters, Gr. H. Huddleston and A. C. Walters.

“One of these notes being for the sum of $1,000.00

“One for the sum of.................. 1,596.00

“And one for the sum of.............. 2,200.00

“Making the total principal of said notes the sum of ......................$4,796.00

“The interest due on said notes to Dec. 19', 1900, is..........................283.47

“Total amount due on said notes to Dec.

19, 1900, is......................$5,079.47

“Copies of said notes are hereto attached and marked Exhibits ‘A,’ ‘B’ and ‘O’ respectively.

“W. T. Walters and F. H. Huddleston were partners on the date of the execution of said notes and were at the time of the death of W. T. Walters, deceased.

“A. F. Ault is the individual owner of tbe Southwest City Bank and is the owner of said notes.

“A. F. Ault being duly sworn according to law, says that to the best of his knowledge and belief he has given credit to the estate of Walters and Huddles-ton, a partnership, for all payments or offsets to which it is entitled, on the demand above described, and that the balance there claimed is justly due.

“A. F. Ault.

“Subscribed and sworn to before me this 19th day of December, A. D. 1900. Witness my hand and official seal. Joseph D. Hagler, Notary Public;

“I, Frank Bradley, in charge of the estate of Walters & Huddleston, a partnership, hereby waive service of notice presentation for allowance of the within claim, this 19th day of December, A. D., 1900.

“Frank Bradley,

“Administrator in charge of the estate of Walters & Huddleston.

CERTIFICATE.

“State of Missouri, County of McDonald, ss. In the probate court.

“I hereby certify that the sum of $5,112.39 was allowed on the attached demand of the fifth class of demands and costs on the 18th day of February, A. D. 1901. J. P. Caldwell,

“Judge of Probate.

“(Indorsed.)

“Demand A. F. Ault v. Estate Walters & Huddleston, a late partnership.

“Filed in court this 18th day of February, 1901.

“J. P. Caldwell, Judge of Probate.”

At the October term, 1902, of the Greene County Circuit Court, defendant Bradley filed his separate answer which is as follows:

“Defendant Bradley, for separate answer to plaintiff’s petition, denies each and every allegation in the same, saving and excepting that defendant says that the probate court of McDonald county did adjudge, make and enter its judgment, order and allowance of the plaintiff’s demand against the estate of W. T. Walters, deceased, of record in the form and words set out in the plaintiff’s petition purporting to copy the same as actually entered and written, of date February 18, 1901.

“Defendant further says that as the duly appointed administrator of the estate of W. T. Walters, he has given bond, with sureties approved by the said probate court, and has been and is duly qualified as the administrator of the partnership estate of Walters & Huddleston, a firm composed of the same W. T. Walters (now deceased) and one G. H. Huddleston, and that he has had and yet has the partnership estate aforesaid in his hands, and has been and is administering the same under the jurisdiction and control of the said probate court along with, but as distinguished from the individual estate of the said deceased Walters, each of which estate consists of lands, tenements, personal property, moneys, notes and accounts, and both of which estates are being converted into cash assets to pay debts and demands allowed by said court against said estate respectively. That the whole assets of each and both of said estates are not sufficient in amount or value to pay or satisfy the said debts and demands, debts and assets thereof being as follows:

“Debts of the individual estate of the fifth class amount to $4,700.90, and the whole assets applicable thereto amount to $4,733.00. Debts of said partnership estate amount to $7,044.78, and the whole assets applicable thereto amount to about $1,743.30; so that both estates are insolvent.

“That the plaintiff’s claim and demand is based upon and was in fact debt or debts of the said partnership, and primarily chargeable against and payable out of the assets thereof; and the same was by plaintiff first exhibited to the said administrator as such on the 19th of December, 1900', and the same notes described in plaintiff’s petition with the plaintiff’s demand based thereon, were presented by plaintiff to the said probate court against said partnership estate, and the same was adjudicated and allowed by said court in plaintiff’s favor, February 18, 1901, in the sum of $5,-142.39, to be paid out of the assets of said partnership estate, which judgment was duly made and entered of record of said court, at the same time with the allowance of the same demand against the said individual estate, though written first on said record at plaintiff’s instance, copy of which said; demand, as allowed against said partnership estate, with plaintiff’s affidavit in support of same, first filed herein with answer of W. E. Jones and A. J. McKinney are adopted by defendant to be hereto annexed as ‘Exhibit A.’

“The plaintiff has elected voluntarily to present his said demand as a claim and debt of and against said partnership estate, and he has reduced the same to judgment of allowance against said estate, out of which he has been paid part of said debt, whereby he is estopped from claiming otherwise in this case.”

At the same time plaintiff filed his reply to the answers of the defendants:

“First. He denies the allegations in said answers that he first presented and allowed the demands set forth in the complaint, against the partnership estate of Walters & Huddleston, but alleges the fact to be that said claims were presented and allowed against the individual estate of W. T. Walters and against the partnership estate of Walters & Huddleston at the same time and the provision in the allowance of the claim against the individual estate of W. T. Walters to the effect that any sums received from the partnership estate should be credited in the allowance against the individual estate of Walters was inserted at the instance and request of the attorney of the administrator of W. T. Walters, as he claimed, to prevent a double collection of the claim.

“ Second. Plaintiff denies the allegation in said answer that he voluntarily elected to probate his claim against the partnership estate of Walters & Huddleston as partnership claim only, but alleges the fact to be that his said claims were in fact the individual liabilities of W. T. Walters, GL H. Huddleston and A. C. Walters, and known to the plaintiff to be such at the time they were presented for allowance, but the plaintiff believed'that Walters & Huddleston, a partnership composed' of W. T. and Gr. H. Huddleston, was also liable for the same and that it was Ms duty to present the same against said partnership estate. The plaintiff did not understand or believe at the time that Ms claim was liabilities of only one of said estates and that he had a choice or election as to wMch estate he should hold liable therefor, and he alleged that he did not in fact or in law have such choice or election, and did not in fact make any such choice or election. He knew at the time that the partnership estate was insolvent and that very little would be realized from it, but the individual estate of W. T. Walters was supposed by him at that time to be solvent, or nearly so, and if he had been called upon to make a choice or election as to which estate he should hold for his debt he would have probated the same as against the estate of W. T. Walters, deceased.

“Third. The plaintiff says it is not true that anything has been received by Mm on Ms claim from the estate of Walters & Huddleston. And the plaintiff further states that if it should be held that Ms claims were not provable against the partnership estate of Walters & Huddleston, as well as against the individual estate of W. T. Walters, he is ready and willing to abandon his claim against such partnership estate.

“Fourth. The plaintiff denies each and every allegation of said answer not herein specifically denied, which is inconsistent with plaintiff’s petition.”

And thereupon at the said October term the defendants filed their motion for judgment on the pleadings as follows:

“Defendants move the court for judgment in their behalf upon the pleadings in this case, for the causes and reasons following:

“The facts averred by plaintiff do not constitute any equitable cause or ground of action or decree in this case.

“If there be any remedy, it may be had adequately at law.

“It is apparent from the plaintiff’s allegations that he has no cause of suit nor grounds for any remedy that may be awarded in this case. The admissions of the plaintiff show that no remedy is available to. him in this case.”

Which said motion having been seen, heard and considered by the court was sustained, and a decree entered dismissing plaintiff’s bill, to which action of the court the plaintiff at the time duly excepted, and in due time the plaintiff filed his motions for new trial and in arrest of judgment, which were heard and overruled and plaintiff excepted, and thereupon took his appeal in due form to this court.

I. The sole question for our determination on this record is the propriety of the action of the circuit court in sustaining the motion of the defendants for a judgment in their favor on the pleadings. That the action of the probate court in changing, altering and modifying its judgment, made upon due notice to the administrator and in the presence of plaintiff and his counsel and the administrator and his counsel and after making the certificate of allowance against the individual estate of W. T. Walters, deceased, and assigning it to the fifth class of demands, and after having approved. the entry for the permanent, record in the presence of both parties, when the plaintiff and his counsel had left the county seat and gone to their respective homes some twenty miles distant, and without any notice to the plaintiff or his attorney of his intention to alter and change the said judgment entry by the interlineation of the matter set forth in italics in plaintiff’s petition, was without authority of law, there can be no question in the light of the decisions of this court, beginning with Caldwell v. Lockridge, 9 Mo. 358.

In that case it appeared that the administrator, Lockridge, had given the regular notice of his intention to resign Ms letters. He appeared in pursuance of that notice and made final settlement and resigned. The settlement left the estate indebted to Caldwell in the sum of $190.42, and the order was made directing the administrator to pay him that sum. Afterwards at a subsequent day of the same term an order was made correcting the former order, disallowing the amount of the Commission allowed by that order, the effect of the correction was to bring Caldwell $101.53 in debt to the estate. This order was made without any notice to Caldwell. Judge Scott, upon this state of the case, said: “On what principle could it be said that he was in court after that time for any purpose? Beyond all question the county court during the term had authority to vacate the order that had been made. But that could only have been done according to the principles of justice. No one could be affected by proceedings of which he had no notice. It is a principle of universal justice that a judgment against a party without notice of the proceedings is purely void. Although the court may have jurisdiction of the cause, yet, if the defendant is not affected with notice of the proceedings, he is not bound by them.”' This statement of the law has received the approval of this court from that day until the present time. The last reference to it that has come under our observation was made in Aull v. St. Louis Trust Company, 149 Mo. l. c. 14, wherein it was again said that the court has power during the term to vacate any order made at that term, but can only do so after notice to the party to be affected is given. In the Aull case, due notice of the motion to set aside and correct the order of distribution theretofore made was given, and the defendants appeared and resisted the motion.

The action of the probate court then in maMng the interlineations above noted without notice to the plaintiff Ault was without any justification in law, and cannot be too strongly disapproved. Were it not for other reasons which, we must now consider we think it is clear that the court would have erred in sustaining the motion for judgment upon the pleadings.

But notwithstanding the unauthorized action of the court in making the interlineations indicated by the italics in plaintiff’s petition, it affirmatively appears that before those interlineations were made the court, as a part of its judgment of allowance of plaintiff’s claim against the individual estate of W. T. Walters, ordered, “that the claimant A. F. Ault shall credit this judgment with all the sums of money received by him on this claim and judgment against the partnership estate of Walters & Huddleston that has been allowed by this court against said partnership estate.” That is to say, the court found that this same claim which it was then allowing against the individual estate of W. T. Walters had already been allowed against the partnership estate of Walters & Huddelston by said court, and this is also averred in the answer of the administrator, and in the reply of the plaintiff it is alleged that the fact is “that said claim was presented and allowed against the individual estate of W. T. Walters, and against the partnership estate of Walters é Huddleston at the same time, and the provision in the allowance of the claim against the individual estate of W. T. Walters to the effect that any sums received from the partnership estate should be credited in the allowance against the individual estate of Walters, was inserted at the instance and request of the attorney of the administrator of W. T. Walters, as he claimed, to prevent a double collection of the claim.” Thus it appears that the plaintiff had this claim allowed against the partnership estate of Walters & Huddleston, as well as against the individual estate of W. T. Walters, and this accounts for the order of the court that plaintiff should credit the individual allowance with all sums received by him on his allowance against the partnership estate. In view of the law of this State in regard to the allowance of demands against the estate of deceased persons, and the allegations of plaintiff’s reply, and the defendant’s answer that this claim was presented against the partnership estate of Walters & Huddleston, that claim must have been supported by the affidavit of the plaintiff, before the judgment was rendered in his favor against the partnership estate.

These facts all established independently of the interlineations in the judgment of allowance, what was the status of plaintiff with respect to the individual estate of W. T. Walters? This question was answered in Hundley v. Farris, 103 Mo. 78, in which it was ruled that partnership creditors have a primary and exclusive claim upon the partnership assets of bankrupt and insolvent partners when the same are administered, and distributed, and individual creditors have the exclusive right to have their debts first satisfied out of the property of individual partners. [See, also, Phelps v. McNeely, 66 Mo. 554.] It was said in Hundley-Farris case that our statutes “looking to the classification of demands against the estate of a deceased member of a partnership and the distribution of his estate have no effect whatever on such priority. They were not intended to have any such effect. The well-settled equities in such cases are not to be thwarted or overthrown by mere methods of procedure, such as those statutes authorize. This point has frequently been thus ruled in States possessed of statutes similar to our own. [Rodgers v. Meranda, 7 Ohio St. l. c. 192; Irby v. Graham, 46 Miss. 425 ; Smith v. Mallory, 24 Ala. 628.] ..... Nor is the position here taken in any manner affected by our statute requiring all joint contracts to be construed as joint and several and making provision for suit against any one or more of those liable. This was the equity rule upon the occurrence of the death of a partner long before the enactment of the statute. [3 Kent’s Com., 64; 2 Bates on Partnership, 828, and cases cited.]”

It might he well to note that when there is no joint fund and no solvent partner, this is an exception to the rule above mentioned.

From the pleadings, then, it appeared to the circuit court and now appears to this court, that this claim of the plaintiff was a partnership debt against the firm of Walters & Huddleston, and even if the court should strike out all the interlineations and changes made in the record of the allowance of which plaintiff complains, the fact would remain that this claim was a partnership debt and plaintiff is estopped by the record which he caused to be made by the probate court, from saying that it was not a partnership debt, or be placed in the unenviable attitude of having wrongfully obtained a judgment against the said partnership estate to which he was not entitled. The fact that the partnership debt was several as well as joint cannot affect the question as to it being primarily the debt of the firm, and certainly the judgment against the partnership estate cannot be set aside nor its force ignored in this collateral case. So that, while we will not countenance or in any manner approve the unauthorized action of the probate court in making the interlineations in its judgment without notice to the plaintiff, we are of the opinion that when all the facts are considered on this record, plaintiff has not shown himself injured thereby. The probate court could have allowed the claim properly- against both the individual and the partnership estate without attempting to direct the marshaling of the assets of the two estates and the settlement of the priorities, and left that to a time when all the claims had been allowed and the time had come for an order of distribution among creditors. Having reached the conclusion that, inasmuch as plaintiff established in the probate court that his debt was a partnership debt of Walters & Huddleston, and that therefore the individual creditors of W. T. Walters have a priority against the individual estate of said Walters, and as neither law nor equity requires the doing of a vain thing, no good purpose can be subserved by a further continuation of this litigation either by remanding the cause for a new trial, or by directing the circuit court to strike out the interlineations in the judgment of allowance, because while they were wholly unauthorized, and the action of the probate court in making them, without notice to the plaintiff, was improper and of no effect, the plaintiff in the peculiar state of this record has not suffered, nor will he suffer any loss or injury thereby. Accordingly the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    SCULLIN, by next friend, v. WABASH RAILROAD COMPANY, Appellant.
    (No. 1.)
    Division Two,
    December 12, 1905.
    1. APPEAL: Judgment by Direction of Appellate Court. There is no appeal from a judgment entered in accordance with the mandate of the appellate court, to which the case after the trial was appealed.
    2. -: -: Motion for New Trial. The statute fixing the time within which motions for new trial and in 'arrest must be filed, means four days after the verdict was rendered. Where plaintiff has recovered a verdict and that on motion for new trial is set aside, and from that order and judgment there is an appeal, and the appellate court reverses that order and directs the trial court to enter a specified judgment for plaintiff, and that is done on the receipt of the mandate, the defendant cannot file a motion for a new trial within four days or any other time. He is not entitled to an appeal from the judgment entered in accordance with the mandate. The statute means that the motions for new trial and in arrest must he filed within four days after the verdict was rendered, and that he is not entitled to have such motions considered' if filed within four days after the last judgment was entered.

      3. -: -: Power of Trial Court. After a verdict for plaintiff and the granting of a new trial on defendant’s motion and an appeal from that order and, the whole record being before the appellate court on plaintiff’s appeal, a reversal of the judgment and a remanding of the cause with directions to enter judgment for plaintiff, all the trial court .has power to do is to enter up judgment in accordance with the mandate.
    Appeal from St. Louis City Circuit Court. — How. Warwick Hough, Judge.
    Affirmed.

      Geo. 8. Grover for appellant.
    The defendant was entitled, as a matter of right, to file its motion for new trial, and in arrest, after the rendition of the judgment below, and to have such motions heard and determined. By striking these motions from the files, the learned judge below refused to hear them, and thereby denied the defendant the equal protection of the laws. Dartmouth College v. Woodward, 16' U. S. (4 Wheat.) 518; McVeigh v. United States, 77 U. S. (11 Wall.) 259; Windsor v. McVeigh, 93 U. S. 274; Hovey v. Elliott, 167 U. S. 409; In re Rosser, 101 Fed. 562; Bank v. Hubbard, 105 Fed. 809; State v. Hayes, 81 Mo. 574; State v. Berkley, 92 Mo. 41; Jones v. Yore, 142 Mo. 38.

      John F. Shepley and Douglas W. Robert for respondent.
    (1) Appellant’s second motion for a new trial and in arrest of judgment were filed four and one-half years after the verdict. They should have been filed within four' days after the verdict (not judgment). They were properly stricken from the files. R. S. 1899, sec. 803; Bank v. Porter, 148 Mo. 176; Bank v. Bennett, 138 Mo. 494; St. Joseph v. Robison, 125 Mo. 1; Maloney v. Railroad, 122 Mo. 106 ; Welch v. City, 73 Mo. 71; Moran v. January, 52 Mo. 523; Allen v. Brown, 5 Mo. 323; Pound v. Cassity, 91 Mo. App. 424; State ex rel. v. McGowan, 62 Mo. App. 625; Beckman v. Ins. Co., 49 Mo. App. 604. (2) This case was reversed with special, directions to the trial court. Under such circumstances, the circuit court had no power to do any acts other than those directed in the mandate. Tourville v. Railroad, 148- Mo. 614; affirmed, 179 U. S. 322; State ex rel. v. Edwards, 144 Mo. 467; Rees v. McDaniel, 131 Mo. 681; Ess v. Griffith, 128 Mo. 59; Stump v. Horn-bock, 109 Mo. 272; Chouteau v. Álen, 74 Mo. 56; Schroyer v. Nickell, 67 Mo. 589; Chiles v. School Dist., 85 S. W. 880; State ex rel. v. Douglas, 83 S. W. 87; State ex rel. v. Harper, 56 Mo. App. 611; McIntyre v. McIntyre, 24 Mo. App. 166; Connor v. Pope, 23 Mo. App. 344. (3) Appellant was not entitled to appeal from the judgment which the Supreme Court ordered the circuit court to enter. Haven v. Railroad, 155 Mo. 216; Rees v. McDaniel, 131 Mo. 681; Ess v. Griffith, 128 Mo. 59; Schroyer v. Nickell, 67 Mo. 589; Chiles v. School Dist., 85 S. W. 880; State ex rel. v. Douglas, 83 S. W. 87; Richardson v. Drug Co., 92 Mo. App. 536; State ex rel. v. Anthony, 65 Mo. App. 5-51. (4) This is a frivolous appeal and should be dismissed with ten per cent damages. R. S. 1899, see. 867; Phillips v. Phillips, 107 Mo. 360; Cordell v. Bank, 64 Mo.600; Bannister v. Henn, 45 Mo. 567; Chiles v. School Dist., 85 S. W. 880; Moneyhain v. Celia, 91 Mo. App. 260; Darby v. Jormdt, 85 Mo. App. 274; Gast v. Fennimore, 84 Mo. App. 228; Mining Co. v. Coquard, 40 Mo. App. 40; Utz v. Hoerr, 20 Mo. App. 36; Schwaner v. Compound Co., 19 Mo. App. 534; Smith v. White ,17 Mo. App. 443; De-Buele v. Labadie, 7 Mo. App. 578.
   BURGESS, P. J.

On the 17th .day of March, 1900, plaintiff recovered a verdict and judgment in the circuit court of the city of St. Louis against the defendant for twenty thousand dollars for personal injuries alleged to have been sustained by him by reason of the negligence of defendant. Upon motion of defendant the verdict and judgment was set aside, and a new trial ordered, and from this last order and judgment the plaintiff appealed to the Supreme Court, where the judgment was reversed and the cause remanded to the court below, with directions to enter up judgment upon the verdict. The case is reported in 184 Mo. 695, where a very full and fair statement of all the material facts may be found. Upon receiving the mandate from this court, the trial court entered up judgment in favor of plaintiff for twenty thousand dollars, the amount of the verdict.

After this judgment was entered, and within four days thereafter, defendant filed its motions for a new trial and in arrest, both of which were stricken from the files because filed out of time. Section 803, Revised Statutes 1899, provides that all motions for new trial and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue; and if not, then before the end of the term. But when defendant filed the motions for a new trial and in arrest of judgment more than four and a half years had elapsed since the verdict was rendered. The' statute relating to the filing of such motions is mandatory. There was but one verdict in the case to which the statute could apply, and that, as we have said, requires all such motions to be filed within four days after verdict. The order and judgment of the court in directing the trial court to enter up judgment upon the verdict was not a trial within the meaning of that term, but simply a mandate, with specific directions to the trial court, and from the judgment rendered in pursuance of such mandate no appeal lies. [Rees v. McDaniel, 131 Mo. 681; Chiles v. School District of Buckner, Jackson County, 111 Mo. App. 52; State ex rel. v. Edwards, 144 Mo. 467; Tourville v. Railroad, 148 Mo. 614.]

While defendant eonld not have appealed from the order granting it a new trial, the whole record was before the conrt upon plaintiff’s appeal, and defendant was not precluded by the record, although brought to this court by the plaintiff, from showing that the trial court did not err in granting defendant a new trial. [Emmons v. Quade, 176 Mo. 22, and authorities cited; see, also, Hoepper v. Southern Hotel Co., 142 Mo. 378; Vastine v. Rex, 93 Mo. App. 93; Ittner v. Hughes, 133 Mo. 679.] Had this course been pursued by defendant, exactly the same questions could have been raised by it as were presented by the record upon plaintiff’s appeal. In Ess v. Griffith, 128 Mo. l. c. 59, it is said: ‘ ‘ The primary purpose of the act in respect to the rights of the parties against whom new trials have been granted, was to give an appeal directly from the order, and thus suspend proceedings in the trial court until the correctness of its action had been determined. If the order granting a new trial is sustained, then both parties will be at liberty to engage in the second trial without waiving any rights. If the trial court is not sustained, then the judgment can be entered on the original verdict and the expense and delay of a new trial be obviated.”

In Shroyer v. Nickell, 67 Mo. 589, the cause was reversed in the Supreme Court and remanded, with direction to the trial court as to its further proceedings in the case. When this was done, the trial court followed the instructions of this court, and the plaintiff again^ appealed. This court said that the trial court had acted in conformity to directions, and “under those directions the plaintiff was not entitled to open the case and have a new trial . . . Had we simply reversed the judgment and remanded the cause, a different phase of the case would have been presented; as it is, we have only to affirm the judgment. ’ ’

The same question was before the Kansas City Court of Appeals in the ease of State ex rel. v. Anthony, 65 Mo. App. 543. It was said: “When a cause has been remanded with special directions, it is out of the power of the court receiving such directions to open the cause and have a new trial. The mandate in such case is in the nature of a special power of attorney. By it authority and jurisdiction are granted to the lower court to take such steps as are ordered and such incidental steps as are necessary to carry the mandate into execution. It has no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed. ’ ’

These decisions abundantly show, that the Supreme Court having obtained jurisdiction of the cause by appeal, and given specific directions to the trial court to set aside its order granting a new trial, overrule the motion therefor, and to enter up judgment for plaintiff upon the verdict, all that the trial court had power to do was to act in accordance with such directions.

Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.


text:
    SCULLIN, by next friend, Appellant, v. WABASH RAILROAD COMPANY.
    (No. 2.)
    Division Two,
    December 12, 1905.
    INTEREST: Judgment: New Trial: Appeal: Reversal. Where plaintiff obtained a verdict for personal injuries, and a motion for new trial was filed by defendant and granted, and plaintiff appealed, and the appellate court reverses the judgment setting aside the verdict and granting a new trial, and remands the cause with directions to enter judgment according to the verdict, with no further directions as to interest, the plaintiff is not entitled to have judgment as of date of the verdict, or to have a judgment for the amount of the vérdict with interest thereon from the date of the verdict, but is entitled only to a judgment for the sum named in the verdict, with interest thereon from the date the judgment was entered in accordance with the mandate.
    Appeal from St. Louis City Circuit Court.— Hon. Warwick Hough, Judge.
    Affirmed.

      John F. Shepley and Douglas W. Robert for appellant.
    The purpose of the statute in allowing appeals from orders granting motions for new trial was to avoid the trouble, expense and delay of unnecessary retrials. Crawford v. Railroad, 171 Mo. 68; Haven v. Railroad, 155 Mo. 216; Cortney v. Railroad, 151 Mo. 35; Candee v. Railroad, 130 Mo. 154; Ess v. Griffith, 128 Mo. 591; Stoddard v. Railroad, 105 Mo. App. 512; Richardson v. Drug Co., 92 Mo. App. 515.

      Geo. 8. Grover for respondent.
    (1) There is no statute under which the allowance here asked for could be made. There are but three eases in which interest is authorized to be charged by the statutes of Missouri, as follows: 1. In cases of conversion, or seizure, such as actions against carriers for non-delivery, or misdelivery. Sec. 2869’, R. S. 1899. It is not here contended, nor can it be successfully, that this action is within the statute above quoted. 2. On contracts in writing. Sec. 3705, R. S. 1899. No claim is here made under this statute, nor could it be, as no contract is here sued on. 3. Interest on judgments. Sec. 3707, R. S. 1899. In compliance with this statute, and in strict obedience to the mandate of this court, the judgment below in the case at bar, has borne and is still' bearing six per cent interest from the day of its rendition, December 15>, 1904. The statute does not now, and never did, in the history of this State, authorize the allowance of interest, nunc pro tunc, upon a mere verdict of a jury. Such a finding, until it ripens into and is replaced by a judgment, is merely an unsecured claim for which plaintiff has no lien. For that reason no interest either accrues, or can accrue, upon such a claim. (2) The only directions received by the learned judge below were the following: “To set aside the order granting a new trial, and to enter judgment for the plaintiff in accordance with the verdict.” This was done, and thus “the appellant was restored to all things he has lost.” For he never.had anything but a verdict, and after it was set aside, the trial court was directed to enter a judgment upon it, which has been done. Crawford v. Railroad, 171 Mo. 84; Chapman v. Railroad, 146 Mo. 494.
   BURGESS, P. J.

On the 17th day of March, 1900, plaintiff-appellant recovered a verdict and judgment against the defendant in the circuit court of the city of St. Louis for the sum of twenty thousand dollars for injuries alleged to have been sustained by him by reason of the negligence of defendant. Thereafter, on the 7th day of July, 1900, on motion of defendant, the verdict and judgment were set aside and a new trial granted. Plaintiff excepted, and in due time filed his affidavit for an appeal.

At the April term, 1904, of the Supreme Court, the judgment granting a new trial was reversed'and the cause remanded, with directions to the trial, court to set aside the order granting a new trial and to enter judgment for the plaintiff in accordance with the verdict.

After receiving the mandate from the Supreme Court, and on the 15th day of December,- 1904, the trial court entered up judgment for the pla.int.ifF in the sum of twenty thousand dollars and costs.

On the 25th day of January, 1905, and at the same term of court at which said judgment was entered, the plaintiff filed the following motion: “Now comes the plaintiff in the above-entitled cause, by his next friend, and moves the court to set aside the judgment herein rendered at this term of court on, to-wit, December 15, 1904, and to enter said judgment.in the sum of $20,000 in accordance with the verdict, and to enter said judgment as of March 17, 1900, in accordance with the mandate of the Supreme Court of the State of Missouri, filed herein.” Which motion the court, upon the same day, overruled, to which order and ruling of the court the plaintiff then and there duly excepted at the time.

Plaintiff contends that when the said order and judgment of the trial court setting aside the verdict and judgment in his favor and granting the defendant a new trial was, upon his appeal, reversed and remanded by the Supreme Court, with directions to the trial court to set aside the order and judgment granting a new trial and to enter up judgment for the plaintiff in accordance with the verdict, it meant as of date March 17, 1900, when said verdict and judgment was rendered; or, if entered in pursuance of the mandate of this court, on the 15th day of December, 1904, it should have been for the amount of the verdict together with the interest at six per cent per annum from the date the verdict was rendered.

Under the Missouri statutes all judgments bear interest from the time of their rendition, unless otherwise provided in the judgment. Prom the time the verdict and judgment was rendered and the motion to set it aside sustained, it was suspended and so remained until judgment was entered in pursuance of the order of this court, on the 15th day of December, 1904. During the interval there was really no judgment in favor of plaintiff which could be enforced for the reason that the one which had been rendered in the first instance had been set aside.

In the case of Crawford v. Railroad, 171 Mo. 68, wherein plaintiff recovered a verdict for personal injuries, judgment was entered on the verdict on February 12, 1901, and on February 15, following, the defendant filed a motion for a new trial, and the same having been sustained and a new trial granted, plaintiff appealed. The court said: “If upon a hearing this 'court should determine that the circuit court erred in granting a new trial, the order of the circuit court to that effect will be reversed and the judgment of plaintiff in that court will be restored in full force and vigor, whereas it is now suspended by an order granting a new trial.”

In the case of Stoddard v. Railroad, 105 Mo. App. 512, the plaintiff obtained a verdict and judgment in the trial court, which, upon motion of defendant, was set aside and a new trial granted. Plaintiff appealed. The Court of Appeals held that error was committed by the trial court in sustaining said motion, reversed the judgment and remanded the cause, with directions to the trial court “to set aside the order granting a new trial, overrule the motion therefor and enter judgment for plaintiff on the verdict of the jury, with interest thereon at six per cent per annum from the date of the rendition of said verdict.”

The precise question involved in this case, that is to say, whether a judgment obtained by plaintiff which is thereafter set aside on motion of defendant, and the order and judgment of the trial court setting aside said judgment is, upon appeal, reversed, with directions to the court to enter up judgment for plaintiff for the amount of the verdict as of the day upon which it was rendered, or, if judgment be rendered after the mandate from the Supreme Court is received, it should include six per cent interest per annum from the time of the rendition of the original judgment, has never been decided by this court. The question in issue in the case was not considered in either of those cases, but the Stoddard case seems to have been disposed of upon the theory that the original judgment bore interest at the rate of six per cent per annum from the date of the verdict, and the court ordered judgment to be entered up for that amount, including six per cent interest per annum. The Crawford case does not touch upon the question at all, and is only referred to as holding that the*judgment was suspended by the order granting an appeal and would be restored in full force and vigor in the event of the reversal of the judgment and remanding the cause, with directions to that effect.

If the plaintiff had submitted to the ruling of the trial court when it sustained defendant’s motion for a new trial, and had the case been tried over again he would have had no claim to interest on the first judgment in the event of his recovery of another verdict, for the reason that it had been set aside. It follows upon the reversal of the judgment and the remanding of the cause with directions to set aside the order granting a new trial and enter judgment for the plaintiff in accordance with the verdict, in the absence of a further order to enter up judgment as of date March 17, 1900, or to enter it for the amount of the verdict, with six per cent interest per annum from the date of its rendition, that the only thing the trial court could do, in acting in accordance with the mandate of this court, was to enter judgment for plaintiff in accordance with the verdict, that is, for twenty thousand dollars. Finding no reversible error in the record, we affirm the judgment.

All concur.


author: FOX, J.

text:
    THE STATE ex rel. LAFFOON, Collector, v. WOOLDRIDGE, Appellant.
    Division Two,
    December 12, 1905.
    APPELLATE PRACTICE: No Bill of Exceptions: Affirmance. In a suit for back taxes, where no bill of exceptions was filed in the trial court, the judgment will he affirmed unless there are errors in the record proper. And if the petition is in the usual and ordinary form in suits for back taxes, and correctly describes the land and alleges that taxes for the different years were regularly assessed and levied, and the judgment of the court is responsive to the allegations of the petition and the relief sought, the record proper is without error.
    Appeal from Cass Circuit Court. — Ho». W. L. Jarrott, Judge.
    Affirmed.

      J. 8. Wooldridge for appellant.
    (1) The parties alleged in the petition to have made the assessment and levy of taxes, to-wit, ‘‘the officers and agents of said State, county and township of Camp Branch of said county, ” had no legal power to make such assessment and levy of taxes on the land described in the petition. The allegations of the petition and plaintiff’s theory of the case are that such parties assessed and also made the levy of taxes thereon; and the plaintiff is held to and bound by the allegations and theory of the petition, and can recover on no other theory. Oglesby v. Railroad, 150' Mo. 177; Witascheck v. Glass, 46 Mo. App. 214; Martinowsky v. Hannibal, 35 Mo. App. 79; Fill v. Coal Mining Co., 23 Mo. App. 224; Brooks v. Yocum, 45 Mo. App. 521; Bruce v. Sims, 34 Mo. 351; Wilson v. Albert, 89 Mo. 546; Kahn v. Weill, 73 Mo. 213; Whitstone v. Shaw, 70 Mo. 575. (2) Statutes in relation to taxation must be strictly construed and closely pursued. Every essential fact to the exercise of the taxing power must appear in evidence. Corn v. Cameron, 19 Mo. App. 582; Dillon on Municipal Corporations, secs. 573, 582; Durrett v. Stuart, 11 S. W. 773; State ex rel. v. St. Louis County Court, 113 Mo. App. 53, 84 Mo. 234; Noll v. Morgan, 82 Mo. App. 118; Railroad v. Apperson, 97 Mo. 300; Blackwell on Tax Titles (2 Ed.), 225; Campbell County v. Taylor, 8 Bush 206 ; Westfall v. Preston, 49 N. Y. 853; Beckwith v. English, 51 111. 147; 3 Washb. Real Property, 223; Allen v. Harnett, 116 Mo. 287; Moreau v. Detchemendy, 18 Mo. 522; Am. Mut. Aid Society v. Helbum, 2 S. W. 495; Welty nn Assessments, sections 275; 282, 299', 321; City of Fort Smith v. Dodson, 11 S. W. 689 ; Lyon v. Alley, 130 U. S. 177. (3) Bill of exceptions presented to the judge of the court for signature, but was not signed or certified by him. R. S. 1899, sec. 729.

      D. G. Barnett and Geo. M. Summers for respondent.
    Appellant has filed no bill of exceptions in this case, and therefore, there is nothing for this court to consider but the record proper. As the record proper in this case consists of the petition of the plaintiff, the answer of defendant and the finding and judgment of the court, these are the only things before this court. As the petition is in due and regular and approved form, fully alleging all necessary allegations in a tax suit, and the finding and judgment of the court are against defendant and in favor of the plaintiff on all the issues, we submit that there is nothing for this court to do but to affirm the judgment of the lower court.

      J. S. Wooldridge for appellant in reply.
    Plaintiff makes no objections to defendant’s brief in this case on the score of unfaithfulness, inaccuracy or want of conformity to the facts of the case. It is tacitly admitted to be true in its contents and make-up. Respondent’s objections to appellant’s brief go to the extent, that because the judge for some unknown reason, some nndivulged cause, did not sign the proffered bill of exceptions, appellant has no standing in this court. There is at least a record before this court, and upon that record the judgment is erroneous, wherefore, appellant prays its reversal by the court, and for all other proper relief.
   FOX, J.

This case is brought here by appeal from a judgment of the Cass County Circuit Court against the defendant, in the sum of one hundred and seventy-eight dollars and fifty-four cents.

This is a suit for back taxes, and was commenced in March, 1902. At the September term, 1902, plaintiff filed an amended petition, upon which the trial was had. On the 9th day of September, 1902, appellant, J. S. Wooldridge, filed his separate answer to the petition. The cause was tried and submitted to the court upon the evidence introduced, without the aid of a jury. *On the 11th of October, 1902, there was a finding and judgment for the plaintiff. Motions for new trial and in arrest of judgment were duly filed and by the court overruled, and from the judgment rendered the appeal was prosecuted.

An examination of the record before us discloses that no bill of exceptions was filed in this cause preserving the action of the trial court during the progress of the trial; hence the evidence introduced upon the trial of this cause, as well as the action of the court in admitting or excluding such evidence, is not before us for consideration; neither is the action of the court in overruling defendant’s motion for new trial preserved by bill of exceptions; hence there is nothing before us for review except the record proper.

We are favored by appellant with a full and complete statement of this case, as well as an exhaustive brief upon the subject in hand; yet unless we make this case an exception to the well-settled rules of practice, applicable to appeals, we cannot consider such statement as forming a part of a properly signed bill of exceptions; and we are unwilling to depart from the long and well-established rules of practice upon this subject.

The record in this case is in every way regular. The petition is in the usual and ordinary form in suits for back taxes; the property is correctly described; the levy and assessment of the taxes for the different years is alleged to have been regularly made, and this judgment of the court is responsive to the allegations of the petition and the relief sought. We see no necessity of burdening this opinion with a reproduction of the pleadings.

Were the complaints suggested by appellant properly preserved by bill of exceptions, we would most cheerfully give them such attention and consideration as their importance and the proper administration of justice demand.

Finding no reversible error in the record proper, the judgment of the trial court is affirmed.

All concur.