source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    E. W. GRAVES v. STEPHEN M. CHAPMAN et al., Appellants.
    Division One,
    March 29, 1912.
    1. BILL OF EXCEPTIONS: Lost: Substitution. The purported bill of exceptions substituted in lieu of the original which has been lost or destroyed, should be something more than calls for the oral testimony of witnesses. „ It should at least contain their names, and the substance of their testimony.
    2. -: -: -: Copy: Legal Conclusion. A statement by counsel that because the original bill of exceptions and the stenographer’s notes were lost or destroyed he has been unable to supply a copy thereof, is simply the statement of a legal conclusion and not of the facts by which the court could determine whether such copy could be reproduced. Appellant should make an honest effort to supply a substantial copy of the lost bill or the substance of the testimony.
    3. -: -: New Trial: Negligence of Counsel and Cierk. Respondent should not be penalized by another trial, and its uncertainty, because of the negligence and carelessness of counsel for appellant, or the misconduct of the clerk in permitting counsel for other defendants to remove the bill of exceptions from his office and to retain them for years without inquiry as to their safety or whereabouts.
    4. -: -: -: Deceased and Scattered Witnesses. It would be unjust to respondent to grant appellant a new trial after the witnesses are scattered or dead, simply because the bill of exceptions, through no fault of respondent, has been lost or destroyed.
    5. -: -: -: Status Quo. A new trial because of a loss of the original bill of exceptions should not be granted where the parties at a new trial would not be in statu quo, and where appellant permitted three years to elapse after the bill was lost or destroyed without making any effort to supply it.

      Appeal from Butler Circuit Court — Hon. J. C. Sheppard, Judge.
    Motion to reverse and remand denied.

      Ernest A. Green fox appellant.

      D. W. Hill, for respondent.
   WOODSON, J.

— This suit was instituted in the circuit court of Butler county, some time prior to January 1,1907, by the plaintiff against the defendant, under section 650, Revised Statutes 1899, to quiet the title to one hundred and twenty acres of land situated in said county.

Service was had upon all the defendants and all of them except the National Iron Mining Company, Isaac Luke and J. P. Thomas, made default, and in due time judgment went accordingly against them. The defendants just named answered and filed a cross-bill, but we are not informed as to its nature or contents.

On January 24, 1908, and during .the January term of the court, a trial of the cause was had, and after the plaintiff introduced his evidence in chief, he dismissed the cause as to the three defendants before named, whereupon they introduced evidence in support of their cross-bill. The court then took the case under advisement until the next term, and on April 19, 1908, it rendered judgment by default against the non-answering defendants in favor of the plaintiff, and found the issues in favor of the plaintiff against the answering defendants on their cross-bill, and rendered judgment accordingly.

In due time they filed their motions for a new trial, which were by the'court overruled.

They then duly appealed the cause to this court, and presented to the trial court their bill of exceptions, which, was hy the court signed, sealed and in due time made a part of the record.

As will more fully appear hereafter, the bill of exceptions and other files in the case were lost or destroyed. On November 10, 1911, the appellants presented to the trial court a substitute bill of exceptions and moved the court for leave to file it in lieu of the lost one, which the court refused to do because it was not a substantial copy of the original bill.

On December 23, 1911, the appellant company filed in this court a motion to reverse the judgment of the circuit court, and to remand the cause for a new trial.

Since there is nothing before this court, except a short transcript of the judgment, etc. (which is irrelevant to the question here presented), and the motion to reverse and remand, with respondent’s suggestions in opposition thereto, it becomes ^necessary to copy the two latter for the reason that they serve not only the functions of a motion and suggestions in opposition thereto, but also contain the statement of the record facts upon which they are predicated. In other words, they constitute the petition and answer in the case, the affidavits in support thereof, as well as the motion and the suggestions in opposition.

The motion, which is duly verified, is as follows (formal parts omitted):

“Now comes the National Iron Mining Company, a corporation, one of the above named appellants, and respectfully makes known and shows to the court the following, to-wit:
“That this is an action commenced by the plaintiff, in the circuit court of Butler county, Missouri, against this appellant as well as several other defendants, to quiet title to one hundred and twenty acres of land in Butler county, Missouri; that said land is of great value by reason of there being located thereupon an iron mine in which extensive mining opera.tions have been carried on by this appellant and defendants for several years; that the exact valne of said land is unknown by reason of the exact quantity of iron ore to be found upon said land being unknown; that this action came on for trial on Friday, the 24th day of January, 1908, and the 16th day of the regular January term, 1908, of the Butler County Circuit Court; and that before the close of plaintiff’s evidence, the plaintiff by leave of court dismissed his petition herein as to this appellant, National Iron Mining Company, and this cause was submitted to the court upon the cross-bill of this appellant, as well as other answering defendants, and that upon the conclusion of the trial of said cause, on the 24th day of January, 1908, the same was taken under advisement by the circuit court of Butler county, Missouri, and thereafter, to-wit, on the 11th day of May, 1908, and the 19th day of the regular April term, 1908, of the Butler County Circuit Court, a judgment was rendered herein, quieting the title of plaintiff to all of the land described in his petition, said judgment being rendered against all of the defaulting defendants, upon.plaintiff’s original petition, and said judgment being rendered in favor of the plaintiff as against this appellant and other answering defendants upon their respective cross-bills.
“And this appellant, National Iron Mining Company, respectfully makes known to the court, that on the same date as the rendition of judgment against it, this appellant, as well as its codefendants, Isaac Luke, and J. P. Thomas, filed their motion for a new trial in said cause, and also their motion in arrest of judgment in said cause; that said motion for a new trial and motion in arrest of judgment coming on to be heard on said 11th day of May, 1908, the same were in all things overruled by the court. To which action of the circuit court in overruling its motion for a new trial and also its motion in arrest of judgment, this appellant, National Iron Mining Company, duly objected and excepted.
“That thereupon, on the same, to-wit, the 11th day of May, 1908, and the 19th day of the regular April term, 1908, of the Butler County Circuit Court, this appellant filed its application and affidavit in due form for an appeal herein, and an appeal was granted by said court to this court, and that this appellant was further granted ninety days from said 11th day of May, 1908, in which to perfect and file its bill of exceptions in this cause.
“And this appellant states that thereafter, to-wit, on the 15th day of July, 1908, this appellant, together with its codefeudants Isaac Luke and J. P. Thomas, presented its bill of exceptions to Pión. J. 0. Sheppard, judge of the circuit court of Butler county, Missouri, and the judge who tried said cause, and prayed that the same might be signed and sealed as such; which was accordingly done on said 15th day of July, 1908, by said judge of the circuit court of Butler county, Missouri.
“That thereafter, to-wit, on said 15th day of July, 1908, the bill of exceptions of the appellant National Iron Mining Company was filed in the office of the circuit clerk of Butler county, Missouri, and accordingly made a part of the files in said cause.
1 “And this appellant respectfully makes known and shows to the court that thereafter, to-wit, on or about the 10th day of June, 1909, one W. H. Meredith, an attorney at law, located at that time in th.e city of Poplar Bluff, Missouri, but now located in the city of Port Orford, in the State of Oregon, went to the office of the circuit clerk of Butler county, Missouri, and acting as attorney for one of the defendants in this case, namely, one S. M. Chapman, procured from said circuit clerk all of the" papers, files, and bill of exceptions in this cause; that said attorney, W. H. Meredith, took said files, papers and this appellant’s bill of exceptions to his law office in the city of Poplar Bluff where he was making use of said papers, files and hill of exceptions; that while said papers were in his possession, there was a large fire occurred in the city of Poplar Bluff, which in all probability destroyed all of the papers, files and the bill of exceptions of this appellant in said cause.
“And this appellant makes known and states to, the court that there are no papers, files or bill of exceptions, or anything pertaining to this case, now remaining in the office of the circuit clerk of Butler county, Missouri, and that the only memorandum which said circuit clerk has in his office, pertaining to this case, is the receipt given by the said W. H. Meredith for said papers, files and said bill of exceptions.
“And this appellant respectfully makes known and shows to the court that the stenographer’s notes taken at the time of the trial of said cause, by R. B. Herrington, who was then the official court stenographer of the Butler County Circuit Court, have been lost, misplaced or destroyed and that there is no way by which this appellant can perfect the record in this ease.
“And this appellant states and makes known to the court that it has endeavored to supply the papers, files and bill of exceptions in said cause, but has been unable to so do; that on the 10th day of November, 1911, this appellant presented to the honorable circuit court of Butler county, Missouri, its application praying that it might be permitted to supply the papers, files and bill of exceptions in said cause; but that said circuit court of Butler county, Missouri, refused said permission to this appellant, because the notes of said stenographer, taken upon the trial of said cause, could not be found and said court was not firmly convinced as to the correctness of the proposed supply bill of exceptions.
“And this appellant makes known and states to the honorable court that all of the matters hereinbefore set forth are fully verified by the attached affidavits of W. H. Meredith, the attorney who took said papers from the office of the clerk of the Butler County Circuit Court; of William McGuire, circuit clerk of Butler county, Missouri; R. B. Herrington, former court reporter of the Butler County Circuit Court; and Hon. J. C. Sheppard, judge of the Butler County Circuit Court; as well as by the affidavit of the attorneys for this appellant.
“And this appellant makes known and states to the court that, if this cause should be reversed and remanded, this cause could he retried without any difficulty; all of the testimony again submitted to the court and this matter again brought before this court for review.
“This appellant further represents and states to the court that, unless said cause is reversed and remanded to the end that the same may be retried, this appellant will suffer a gross injustice, by reason of the fact that it will not only suffer the loss of the real estate involved in this action, but will also be compelled to pay large and heavy sums of money for the iron ore which it has taken from said land, and for which an action of ejectment and trespass is now pending in the Butler County Circuit Court, awaiting the final termination of this action.
“And this appellant further makes known and states to your honorable court, that it has prosecuted its appeal with all due diligence and in perfect good faith, believing that it has a meritorious appeal and that it is the actual owner of the minerals and mineral rights, including all the iron ore found under the surface of the lands in controversy herein.
“And this appellant respectfully calls the court’s attention to the attached affidavit of the Hon. Jesse C. Sheppard, who states therein that he has good cause to believe and does believe that there are reasonable grounds for review of his action in passing upon this case.
“And this appellant respectfully states and further makes known to this court, that it is through no fault of this appellant or its counsel, and through no lack of diligence on its part, that said papers have been lost, burned up or destroyed; but it earnestly prays the court that this cause may be reversed and remanded to the end that full justice may be done to it, as well as to the other parties to this action, and that it may have an opportunity to submit to this court its rights in the premises.
“This appellant does not submit this motion in the light of any precedents heretofore established, but merely with the belief that the only aim of this court is to secure .substantial justice to all litigants appearing before it, and with that end in view it submits herewith its motion and application, praying that this cause may be reversed and remanded to the end that substantial justice, and that alone, may be done to this appellant, respondent herein, and its co-defendants.”

Respondent’s suggestions in opposition to the motion to reverse and remand, which is also duly verified, are as follows (formal parts omitted):

“Now at this time comes the respondent in the above entitled cause and suggests that the motion filed by the appellants to reverse the judgment and remand this cause should be denied for the following .reasons:
“1st. Because the motion filed by the appellants on its face shows that the appellants are guilty of laches or negligence in perfecting their appeal in this: It is shown by said motion that their bill of exceptions remained on file in the circuit clerk’s office from July 15, 1908, until the 10th clay of June, 1909, which afforded reasonable and ample time in which appellants conld have prepared a full transcript or abstract in lien' thereof.
“2nd. Because the appellants are guilty of negligence in failing to file a timely motion to remand this cause — said motion having been served on the respondent for the first time on November 28, 1911; while the fire which is supposed to have destroyed the bill of exceptions in this case occurred on the 5th day of September, 1909.
. “3rd. Because the appellants are guilty of negligence in not discovering the loss of the bill of exceptions until more than three and one half years after the final judgment was rendered in the trial court,' or were guilty of negligence in not filing a timely motion after the discovery of the loss of the bill of exceptions.
“4th. Because on or about the 27th day of February, 1909, the defendant Stephen M. Chapman died, and although he was a defendant, he was one of the most important witnesses for the respondent; and the respondent knows of no one by whom he could establish all the facts which were known to the defendant Stephen M. Chapman.
“5th. Because a new trial of this case would involve considerable expense in taking the testimony of Addison F. Burns, an important witness for respondent, in Washington county, Pennsylvania, if he is living; that the respondent is informed and believes that the said Addison F. Burns is very old and feeble.
“6th. Because this respondent should not be penalized by the imposition of a new trial, as a result of the negligence of the official stenographer in losing or misplacing his stenographic notes.
“7th. Because this ' respondent should not be penalized by the imposition of a new trial because of the negligence of the circuit clerk in losing or misplacing the official stenographer’s stenographic notes if they were ever deposited with him.
“8th. Because this respondent should not be penalized by the imposition of a new trial as a result of the negligence of the circuit clerk in permitting the bill of exceptions to remain out of his office from the 10th day of June, 1909, until the 5th day of September, 1909, when they were probably destroyed by fire; and in this connection respondent calls the attention of this court to the case of Redway v. Chapman, 48 Mo. 218, and Dameron v. Harvey, 23 Mo. App. 197.
“9th. Because this respondent should not be penalized by the imposition of a new trial as a result of the negligence of the attorney for the appellants in losing their copy of the bill of exceptions, or in failing to provide himself with a copy of such bill of exceptions.
“10th. Because this bill of exceptions has been lost, burned or misplaced as a result of the fault of Mr. W. H. Meredith, who was the attorney for the defendant Chapman, or William Ferguson, who was president of the National Iron Mining Company, as shown by the following correspondence:
“ ‘December 11, 1911.
“ ‘Me. W. H. Meredith,
Port Orford, Curry Co., Oregon.
“ ‘Dear Sir:
“ ‘I have before me your affidavit made on the 15th day of November, 1911, regarding the loss of the bill of exceptions in the case of E. W. Craves, plaintiff, v. The National Iron Mining Co. et ah, and in view of the fact that your memory seems a bit hazy about whom you were representing I want to refresh your recollection as to some of the facts:
“ ‘You state in your affidavit that you took this bill of exceptions from the clerk’s office while you were associated with Mr. Chapman, but you must bear in mind that this case had already been decided against Mr. Chapman — he had taken no appeal, and, as I understand from another source, you were in fact investigating these papers on behalf and as attorney for William Ferguson.
“ ‘Now, please write me, by return mail, stating the exact facts. I enclose stamp- for reply.
“ ‘Wishing you unbounded success in your new field, I am,
“ ‘Tours truly, David W. Hill/
“ ‘Imperial Hotel,-
“ ‘Portland, Ore., Dec. 25, 1911.
“ ‘Mr. David W. Hill,
Poplar Bluff, Mo.
“ ‘My dear Hill:
“ ‘Tour letter of the 11th inst. has just been forwarded to me here. I have been away from home two weeks on a suit and business matters for our Port, so did not receive your letter sooner.
“ ‘As to the case of Graves v National Iron Mining Co. et al. my memory is hazy in the matter, and I could not positively say now who I was representing when I took those papers from'the clerk’s office. I know that I did have some consultation with Wm. Ferguson relative to some of those mining cases, and it might have been that I was investigating the case in his behalf when I had those papers. I did not remember having them until Mr. Green wrote me that he found my receipt for them in the clerk’s office, and wanted me to look among my papers and see if I had them. I knew from the date of the receipt that the papers must have been in my office at the time of the fire, and did have some recollection of having gotten them. I know nothing of the merits of the controversy between your Mr. Green’s clients, and do not wish'to make any statement about which I am uncertain that will affect the case. I only know that if I bad those papers and left my receipt for them, as slated, I have not got them now and they must have been destroyed in tbe fire. Whether I was at that time investigating them for Chapman or Ferguson, I do not know.
“ ‘Sincerely yours, W. H. Meredith/
“And in this connection the court’s attention is called to the fact that at the time Mr. Meredith took the bill of exceptions from the clerk’s office, judgment had already been rendered against the defendant Chapman, who took no appeal.
“11th. Because the alleged attempt on the part of the appellants to supply the bill of exceptions in the trial court was' apparently not serious but perfunctory, and made solely for the purpose of having a seemingly plausible basis upon which to base a motion to reverse and remand; and in support of this contention of respondent, he herewith presents a copy of the proposed supply bill of exceptions, which the appellants presented to the trial court and which was held to be insufficient on November 10, 1911, which copy is marked ‘Exhibit A’ and make a part of these suggestions; and in this connection the court’s attention is called to the statement of the testimony of Isaac Luke, as appears on page 9 of Exhibit A, which is in direct conflict with the statement of the appellants’ attorney, W. N. Barron, as contained in his brief presented to the trial court, which we quote as follows:
‘ ‘ ‘ The defendants Luke and the Mining Company have shown a possession of part of the tract for upwards of ten years and a continuous possession for more than seven years under claim and color of title to all of the land in controversy. This possession of the two defendants named fails to constitute perfect title to the property in suit only by reason of not having existed for the full statutory period of ten years.
“Thus, it will be seen that the National Mining-company is nothing more nor less than a trespasser when we consider this statement in connection with the deed from Samuel Petersberg'er to Isaac Luke, under whom the National Iron Mining company claims —this deed being dated November 2, 1900', as appears on page 9 of said exhibit A; while exhibit A shows that the same Petersberger had years and years before that time conveyed this land to parties under whom respondent claims. All of which absolutely refutes the statement made by appellants that they believe they own the land in suit and have a meritorious appeal; and in this connection the court’s attention is called to the fact that in this proposed supply bill of exceptions the oral testimony of only one witness purports to be given, while in truth and in fact four or five witnesses testified orally — among them, as respondent’s attorney remembers, being W. I. Hooper, E. W. Craves, S. M. Chapman and others. All of which respondent respectfully submits conclusively shows that the attempt to supply the hill of exceptions was perfunctory and not serious.
“12th. Because the appellant National Iron Mining Company should not, under the existing circumstances, be permitted to escape the judgment of the trial court for the purpose of defeating*'the ejectment suit of the respondent now pending for the recovery of the value of the iron ore, which the said Mining Company caused to be taken from the land in suit since it was adjudg*ed to have no title or interest therein.
“13th. Because the ex parte affidavit of the trial judge should not be permitted to overturn a solemn decree rendered in favor of respondent after a fair trial- and a full investig’ation of the authoiities, and after that decree had been further approved by the trial court by the overruling of the appellants’ motion for a new trial. At the time the trial court rendered the decision and passed on the motion for a new trial, the facts and the law were certainly better fixed in the mind of the court than they were at the time he made the ex parte affidavit in November, 1911, more than three and one-half' years after the trial of this cause. To reverse a solemn decision of the chancellor on such ex parte affidavits as are filed in this ease would be setting a dangerous precedent for the future.
‘ ‘ 14th. Because Eule 16 of this court contains no exceptions, and the appellants having failed with Eules 11, 12, 13, and 15, appellants’ motion to reverse and remand should be denied and the respondent’s motion to dismiss the appeal should be sustained.
“15th. Because it is not even suggested that respondent or his counsel have been at fault or negligent regarding the loss of the papers in question.”

There is attached to the respondent’s suggestions in opposition to the motion a copy of the bill of exceptions, . presented by counsel for appellant to the circuit court, which he moved to be substituted for and in lieu of the original and lost bill.

Counsel for appellant cites no authority in support of this extraordinary motion and frankly admits that he knows of none which lends support to his prayer.

After as careful a consideration of the question presented, as we are able to make from the meagre facts before us, we are of the opinion that the motion should be denied for several reasons:

(a) Prom an inspection of the copy of the bill of exceptions presented to the circuit court for substitution in lieu of the original, it is perfectly apparent upon its face that it is in no sense a correct copy of the original.

Quite frequently we find in our reports the words “skeleton bill of exceptions,” or some equivalent words, but the copy which in this case was presented to the circuit court for substitution is the first perfect skeleton of that character which has ever come under my observation. It is in truth and fact a skeleton bill, with no flesh or sinews or other foreign substance whatever contained in it. Nothing but numerous ‘£ calls for ’ ’ tied together only with the paper upon which they are written.

It appears that there were a number of witnesses, some six or eight, who testified orally at the trial, in open court. Neither their names nor their testimony was attempted to be set out, or stated therein, with the exception of one witness, and his testimony is so brief and meagre as to be almost unintelligible.

It should be borne in mind that the respondent, and not the appellant, presented to this court the so called bill of exceptions, which the latter presented to the circuit court for substitution.

Counsel who represents appellant in this court had nothing to do with the trial of the cause in the circuit court, the appeal, or with the so-called bill of exceptions offered to be filed in the cause, and is not therefore responsible for any of the acts of negligence mentioned in this opinion.

(b) There is no showing made to this court, that said copy of the bill of exceptions so presented to the circuit court was a copy of the original bill which was lost or destroyed; and by carefully .reading the appellant’s motion to reverse the judgment, it will be seen that counsel does not state that respondent made an honest effort to supply a substantial copy of the lost bill, but contents himself with the statement that because the original bill of exceptions and the stenographer’s notes were lost or destroyed, he has been unable to supply a copy thereof. That is simply stating a, conclusion and not the facts from which this court, or the circuit court could determine whether or not a copy of the bill could be produced.

Up to a few years ago, all bills of exceptions were prepared by counsel, without the assistance of a stenographer or his notes, and we are unable to see why such a thing may not he done at this day. Clearly it would he no more difficult to prepare a copy of the original without the stenographer’s notes, than it would he to prepare the original itself. But be that as it may, we would not be justified in the absence of some additional showing in holding that counsel could not prepare a copy of a long bill of exceptions, simply because the stenographer’s notes had been misplaced.

There is no showing made here nor was there such made to the circuit court, that the lost bill was lengthy, that the evidence introduced was voluminous, or that the substance of the witnesses’ testimony could not be reproduced, which is often done, as we know from common knowledge and experience.

(c) We are favorably impressed with the suggestion of counsel for respondent that their client should not be penalized by another trial, and its uncertainty, through the. negligence or carelessness of counsel for defendants, or the misconduct of the circuit clerk in permitting the records of his office to be removed therefrom by counsel and retained by them for years, without inquiring as to their safety or whereabouts.

(d) We are favorably impressed with the suggestion of counsel for respondent that it would be highly unjust to his client, at this late date, to be required to stand another trial, after some of his witnesses are dead and the others scattered to the four quarters of the country.

(e) Nearly four years have elapsed since the judgment in this case was rendered and more than three since the bill of exceptions was lost or destroyed, but the fact was not discovered by appellant until last month. Why this delay? Can such conduct be excused? We think not. If counsel had paid not ordinary, but the slightest, attention to this case, he long ago would have discovered that the bill of exceptions had been lost or destroyed, and would have been in a nuicli better position to have substituted the bill, than lie is now, since the witnesses are scattered or dead.

This negligence of the appellant should not be visited upon the respondent, who is no wise blamable for the loss or destruction of the bill. A reversal of this judgment under the circumstances would not restore the parties to their statu quo. The respondent would not have the testimony of all the witnesses he bad at the last trial. Such a reversal would reward the negligence of the appellant, andi penalize the innocence of the respondent.

View this motion as you may, there is no merit in it.

We have not considered the question as to whether or not, under the facts of this case, this court has the legal authority to sustain the motion, but have placed our ruling solely upon the fact that there is no merit in it.

We are, therefore, of the opinion that the motion should be denied, and it is so ordered. But appellant lias leave to renew application.

All concur.


author: YALLIANT, J.

text:
    MARY A. NEIL v. JANE L. TUBB et al., Appellants.
    Division One,
    March 29, 1912.
    1. SCHOOL FUND MORTGAGE: Statutes: Secs. 10817 and 10813: Construed Together. Section 10817, Revised Statutes 1909, providing that a school fund mortgage shall contain a condition that if default be made in the payment of the principal or interest the sheriff of the county may, upon giving twenty days’ notice of the time and place of sale, without suit on the mortgage, proceed to sell the mortgaged premises, which shall be as effectual to all intents and purposes as if such sale and conveyance were made by virtue of a court of competent jurisdiction foreclosing the mortgage; and section 10819, Revised Statutes 1909, providing that when the principal secured by a mortgage containing a power of sale shall become due- and payable the county court may make an order to the sheriff, reciting the debt and interest to be received, and commanding him to levy the same with costs upon the property conveyed by the mortgage, and a copy of such order, duly certified, being delivered to the sheriff, shall have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly, are to be construed together; and if the sheriff undertakes to sell the mortgaged property when no order of the county court directing him to sell was made, his act is null and void.
    2. -: Foreclosure and Sale by Sheriff: No Order of Court. A sale by the sheriff of the mortgaged property, mortgaged to the county by a school fund mortgage, when no order of the county court directing him to sell has been made, as required by section 10819, Revised Statutes 1909, is null and void.
    3. -: -: -: Nunc Pro Tunc Order: Fictitious Proceeding: Notice. When a court at a former term made an order or rendered a judgment which should have then been entered of record but was not, it may be entered at a subsequent term as for then, provided the court has a sufficient memorandum of its own to show that the order or judgment had actually been made at the former term, and then it becomes a nune pro tunc order or judgment; but when entered it is not the order or judgment now made, but the one then made. Where the county court at its May term, 1905, failed to make an. order to the sheriff, reciting the debt and interest due on a school fund mortgage, and commanding him to levy the same, with costs, upon the mortgaged property, an order made at the February term, 1907, after the property had been sold by the sheriff and the mortgage marked satisfied on the record by the clerk, calculating interest on the bond down to date and declaring the mortgage was then due and unpaid, was not a nuno pi~o tuno order, but in all respects in form an original order. Nor did the court at that February term have any right to make an order declaring the mortgage was due and unpaid, and with that statement as .a basis order a sale of the land; and, if plaintiff, or her grantor, who purchased at the sheriff’s sale made in pursuance thereof, knew all these facts, she did not acquire the title, for that was a fictitious proceeding.
    4. -: -: -: Order Recited in Clerk’s Certificate. A clerk’s order to the sheriff to sell the mortgaged property, reciting therein that the county court had previously made an order to that effect, when in fact no such order had been made, was an unauthorized act, and cannot be held to supply the order itself. The only act in that regard that the statute authorizes the clerk to perform is to make a certified copy of the order of the court and deliver it to the sheriff.

      5. -: -: -: -: Report of Sheriff Approved. Nor does the fact that the sheriff, who sold the mortgaged property when, there was no order of the court directing him to sell, reported the sale to the county court and the court approved it, give any validity to the sale. The court cannot by its approval give validity to an unauthorized act.
    6. -: -: -: Collateral Attack: Ejectment. The defendant in an action of ejectment, to which she has answered by a general denial, has the right to defend her possession, and when plaintiff offers proof of his title to object to it for infirmities apparent on its face. Defendant in such case does not seek to have annulled the sheriff’s deed under which plaintiff claims, made in the foreclosure of a school fund mortgage without an order of court, nor does she make a collateral attack upon that deed, but she simply requires plaintiff to make legal proof of his title.
    Appeal from Butler Circuit Court. — Eon. J. C Sheppard, Judge.
    Reversed.

      E. R. Lentz for appellants.
    (1) The county courts have the exclusive control of the management, investment and collections of the school funds of their respective counties. Their powers are fixed and determined by statute. The provisions are found in Secs. 10813 to 10821, R. S. 1909. (2) The provisions in relation to the conditions of the mortgage and manner of foreclosure are prescribed by statute. R. S. 1909, sec. 10817. A school fund mortgage made in pursuance of this section cannot be foreclosed by the sheriff until the county court has made and delivered to him its order commanding-such foreclosure, as provided in section 10819. Benton Co. v. Morgan, 163 Mo. 675. (3) Before the sheriff has any authority to sell, the county court must make an order to the sheriff reciting the debt and interest to be received, and commanding him to levy the same with costs, upon the property conveyed by the mortgage, which shall be described as in the mortgage; and a copy of such order, duly certified, being delivered; to the sheriff, shall have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly. R. S. 1909, sec. 10819; Benton Co. v. Morgan, 163 Mo. 675. (4) The statute demands that the county court make an order, etc. The county courts are declared by statute to be courts of record, and are required to keep just and faithful records of their proceeding's. R. S. 1909, sec. 3845. Courts of record can only speak through their records. Medlin v. County, 8 Mo. 235; City v. Railroad, 81 Mo. 293; Cummings v. Brown, 181 Mo. 718; County v. Salmon, 201 Mo. 151; Morrow v. County, 189 Mo. 624; Riley v. County, 96 Mo. 321. Parol evidence is inadmissible to contradict or supply a record. Milan v. Pemberton, 12 Mo. 598; Mobley v. Nanne, 67 Mo. 549; State v. Ross, 118 Mo. 43. (5) A simple reading of the so-called order of sale will show that the paper read in evidence was not an order of the county court, duly certified, as required by statute, and does not purport to be such, but on its face purports to be a paper in the nature of a special execution, issued by the clerk, upon a supposed judgment rendered by the county court. The statute gives no authority to the county clerk to issue any such paper. The only paper the clerk was authorized to give to the sheriff was a copy of the order of the county court, and that duly certified. Here there was neither. The paper was not a copy of an order of the county court. Nor was it certified as being such. Hence it conveyed no authority upon the sheriff to either sell or convey the land. R. S. 1909; sec. 10819; Benton Co. v. Morgan, .163 Mo. 675. (6) The deed is void for want of necessary recitals. It recites no authority to sell. R. S. 1909, sec. 2231; Turner v. Stine,. 18 Mo. 586; Wilhite v. Wilhite, 53 Mo. 74. (7) The debt secured by the mortgage was paid in full on October 21, 1905. On the same day the clerk of the county court delivered the bond and mortgage to the makers. The payment of the debt absolutely discharged the mortgage, and the county court, thereafter, had no power or authority to make the order which it thereafter did, on Feb. 6, 1907. This order and the deed made in pursuance thereof were therefore absolute nullities. 2 Jones on Mort., sec. 889; McNair v. Picotte, 33 Mo. 71; Pease v. Iron Co., 49 Mo. 128; Kempf v. Ins. Co., 41 Mo. App. 31; Seeser v. Southwich, 66 Mo. App. 670. (8) In the court below counsel argued that the county court had the power to make a mine pro tunc order, supplying the order which should have been entered. But no such question is presented here. The order of Feb. 7, 1907, does not pretend1 to be a nunc pro tunc order, but is from start to finish an original order. (9) None of the elements of estoppel are here present. (10) All the matters herein shown may be given in evidence under the general denial in an action of ejectment. Benton Co. v. Morg-an, 163 Mo. 678.

      PhillipsPhillips for respondent.
    (1) The appellants in their brief say that a school fund mortgage made in pursuance of the statute cannot be foreclosed until the county court has made and delivered to the sheriff its order commanding such foreclosure, and cites Benton Co. v. Morgan, 163 Mo. 675. The vice of the argument herein is that in the Benton county case there whs no order ever made to sell the land. Here an order was made, as is evidenced by the order, signed and certified to, by the county clerk and delivered to the sheriff, and upon which the sheriff acted. The court’s attention is here called to the case of Fontain v. Hudson, 93 Mo. 69. This case has been followed and cited approvingly in Peltz v. Bollinger, 180 Mo. 259. (2) In the case of Jackson County v. Stone, 168 Mo. 582, the sheriff in the discharge of his official duty as such, levied on, advertised and sold the mortgaged land on a duly certified copy of the order of the county court, which the statute declares shall have the effect of a fieri facias, on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly. Thus, by express statutory law, the duly certified copy of the order of the county court in the hands of the sheriff became, in fact, a final process, in the nature of and equivalent to an execution on a judgment of a court of general jurisdiction. Benton County v. Morgan, 163 Mo. 676. (3) It does not make any difference whether the clerk ever entered the order of the county court on the record proper, if in compliance with the law he formulated the order of the court, in legal language, signed and delivered it to the sheriff. Then under the doctrine laid down in Fontain v. Hudson, and Peltz v. Bollinger, the sheriff was authorized, and indeed, it was his duty, to proceed to sell the land. So when Mrs. Baird bought it at the sale and paid the amount of her bid and the sheriff receipted her for the same and immediately thereafter reported the same to the county court, and the court approved his report and then commanded him to make a deed to Mrs. Baird in conformity with his report, then all the formalities of law that were required had been complied with, and the deed to Mrs. Baird was a valid and legal deed. R. S. 1899, sec. 9833. A mere irregularity in judicial sales can only be called in question in a direct proceeding and cannot be inquired into collaterally in ejectment. Bobb v. Graham, 15 Mo. App. 289. (5) "Where a judicial sale of land is made under the authority of a court having power to order it, and there is no pretense of fraud, the title of the purchaser will not be affected by slight irregularities in the sale. Patte v. Thomas, 58 Mo. 163, (6) If there was any informality in the order of June, 1905, it was corrected andl ratified by the subsequent proceedings of the court, and again by the action of the court of February 7, 1907. It is a familiar principle, that where the officers of a county have the power to act, but act irregularly, the county court may ratify such acts and thus make the acts binding in every essential particular. Yalle v. Fleming, 19 Mo. 462; County v. Salem, 201 Mo. 150; Low-ring v. Groomer, 110 Mo. 639; Daniel’s Practice, 1219.
   YALLIANT, J.

— Plaintiff sues in ejectment for possession of the south half of lot 1, and east half of the south half of lot 2, of the northwest quarter of section 31 township 25 north of range 6 east, contain ing 62 acres, in Butler county.

The answer of defendant was a general denial. There is no dispute as to facts, but the dispute is as to the legal meaning and effect of certain documents in evidence.

Louise Sutton is the common source of title. September 21, 1900, she borrowed $500' of the school fund of Butler county, and for its payment she and her husband executed a bond, with personal security, of that date, for that amount, to Butler county, and on the same date executed a mortgage on the land in suit, in conformity with the statute in such case made and provided, to secure the loan; the mortgage was duly recorded. April 25, 1901, Mrs. Sutton and her husband conveyed the land by warranty deed to the defendant Jane L. Tubb, subject however to that mortgage. That is defendant’s claim of title.

Plaintiff introduced evidence which she claims tends to show that the mortgage was duly foreclosed, the land sold by the sheriff under foreclosure sale, August 10, 1905, to Mary Baird, the sale reported to the county court and confirmed; that afterwards Mary Baird by warranty deed conveyed the land to one Welborn, and he by like deed to the plaintiff. That is the plaintiff’s claim of title.

The decision of the case turns on the point of whether the mortgage was legally foreclosed; the trial court held that it was and gave judgment for the plaintiff; the defendant appealed.

Let us first see what the statute requires and then see if the plaintiff’s proof meets the requirements. Section 9824, Revised Statutes 1899, mates it the duty of the county court to cause the school fund’s of the county to he invested at interest on mortgages of land in the county double in value to the loan. Section 9827 makes it the duty of the county court to see to the collection of the moneys so loaned, and when paid the clerk is required to indorse the same on the bond and cause satisfaction of the mortgage to be entered on the record. Sections 9832 and 9833 make further provisions in reference to the mortgage to be taken to secure the loan% Section 9833 provides that the mortgage shall “recite the bondi and shall contain a condition that if default shall be made in payment of principal or interest, or any part thereof . . . the sheriff of the . county may, upon giving-twenty days’ notice of the time and píace of sale . without suit on the mortgage proceed to sell the mortgaged premises . . . which shall be as effectual to all intents and purposes as if such sale and conveyance were made by virtue of a court of competent jurisdiction foreclosing the mortgage.” Section 9835 is as follows: “Whenever the principal and interest, or any part thereof, secured by mortgage containing a power to sell, shall become due and payable, the county court may make an order to the sheriff, reciting the debt and interest to be received, and commanding him to levy the same with costs, upon the property conveyed by said mortgage, which shall be described as in the mortgage; and a copy of such order, duly certified, being delivered to the sheriff, shall have the effect of a -fien facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly. ”

We have quoted from the Revised Statutes of 1899, because the the rights of the parties in question arose prior to the revision of 1909, bnt the statutes are the same now as they were then. [Sections 10817 and 10819, R. S. 1909.]

Under section 9833 it is required that the mortgage contain an authorization to the sheriff on condition broken, to proceed to advertise and sell to foreclose without suit, while section 9835 requires the county court on default of payment to make án order reciting the amount of the debt, principal and interest, and commanding the sheriff to levy the same with costs on the mortgaged property, describing it, and that a copy of the order duly certified be' delivered to the sheriff and have the effect of a fieri facias as on a judgment of foreclosure in the circuit court. This court has held that those two sections are to be construed together; that if the sheriff should undertake to sell without a duly certified, copy of the order of the county court delivered to him in accordance with section 9835, his act would be null and void. [Benton Co. v. Morgan, 163 Mo. 661.] In that case the county court had made the order required by the statute, but a certified copy of it had not been delivered to the sheriff, and for that reason it was held that his deed was void.

In the case at bar there was no evidence that the county court ever made an order in reference to this mortgage as required by statute. On the contrary the evidence showed that a careful search by a competent person familiar with the records of the court had been made and no such order could be found in the records; we do not understand the plaintiff as claiming that there is such a record. There was not delivered to the sheriff what purported to be a certified copy of such order. The plaintiff’s'evidence on that point was a certificate of the clerk of the county court dated June 6, 1905, reciting the mortgage and its contents, and saying that whereas the county court on the 8th day of May, 1905, did find the amount of principal and interest due on the bond, and did then and there direct that judgment therefor should be entered against the. principal and sureties on the bond, and that an order of sale of the property described in the mortgage should issue; then the clerk in his certificate proceeds to order the sheriff to advertise and sell the property. It was under that order that the sheriff acted when he sold the property to Mary Baird under whom the plaintiff now claims. Since that certificate is the main base of the plaintiff’s title, perhaps we should copy it here in full:

“To the sheriff of Butler County, Missouri, Greeting:
“Whereas, On the 21st day of September, 1900, Louise Sutton borrowed of the county of Butler, in the State of Missouri, the sum of five hundred (500) dollars, belonging to the capital school funds of the following described school townships in said county, in the several amounts set opposite thereto, respectively, viz.:
“And to the public school fund of said county . .$500.00, total . . . $500.00, for which sum of borrowed money, the said Louise Sutton, J. N. Sutton, as principal with John H. Souders, William A. Spence and S. M. Chapman as securities, executed a bond to the said county, bearing date 21st day of September, 1900, in which said bond the principal and securities agree and bind themselves to pay to the said county, for the use and benefit of the school township hereinbefore mentioned, on or before the 21st day of September, 1901, the said sum of borrowed money, with interest thereon from the date of said bond, until,paid, at the rate of eight per cent per annum; said interest to be paid annually on the 21st day of September, in each and every year, until the whole debt should be paid off and discharged, and
“Whereas, In consideration of the premises, and to secure the payment of said sum of borrowed money, when the same should become due on the 21st day of September, 1901, the said Louise Sutton and James N. Sutton, her husband, executed and delivered to the said county, for the use and benefit of the said school township, their certain mortgage deed, whereby they conveyed to the said county the following described lot, tract or parcel of land, lying, being and situate in the county, of Butler, State aforesaid, viz.: All of south half of lot one (1) of the northwest quarter and all east half of south half of lot two (2) of the northwest quarter of section thirty-one (31), in township twenty-five (25) of range six (6) east, containing 62.28 acres, more or less.
“Upon this express condition, however: That if the said principal and securities should well and truly pay or cause to be paid, the said sum of borrowed money, and all the interest thereon, according to the tenor and effect of said bond, that then, and in that case, said mortgage deed should become void, and that if default should be made in payment of said sum of borrowed money, or the interest thereon, or any part thereof, at the time when they should severally become duo and payable, according to the tenor and effect of said bond, that then the then acting sheriff of Butler county aforesaid, should (without any suit on said mortgage deed) proceed to sell at public auction, to the highest bidder, for cash in hand, the property therein conveyed and mortgaged, first giving twenty days public notice of the time, terms and place of sale by publication in some newspaper published in said county,- and out of the proceeds of said sale to pay the costs attending such sale, and then the debt and interest due the county of Butler, as aforesaid; which said mortgage deed was recorded in the office of the recorder of said county of Butler, in Book 48, at page 41.
“And, Whereas, The county court of Butler county aforesaid, by an order made and entered of record on the 8th day of May, 1905, dotlx find that default has been made in the payment of said sum of money according to the tenor and effect of the said bond, and that the said Louise Sutton is now indebted to the said county for the use of said school township ’s money in the sum of seven hundred and sixteen' and 50-100 dollars, principal and interest, computed to this date, due and unpaid upon the said bond, and then and there directed that judgment therefor should be entered against said principal and securities in said bond, and that an order of sale of the property described in said mortgage deed should issue to satisfy the same;
“Now, Therefore, you, the sheriff of said Butler county, are hereby commanded to levy the said last mentioned sum of money upon the real estate herein-before described, and to sell the said real estate according to law to satisfy said debt, interest and costs ; and make return of your proceedings under this or ler to the next term of this court, to be held on the 7th day of August, 1905.
“Witness my hand and the seal of said court, the 6th day of June, 1905.
“Geobge C. Orchard,
“Clerk of the County Court of Butler. Co.”

The sheriff executed a deed to Mrs. Baird and made a report of the sale to the county court at the November term, 1905, and an order was then made by the court approving the sale. In that report the sheriff said that" he had acted in pursuance of an order of the court made at the July term, 1905.

In the order approving the sale there is no reference to any kind of an order of sale by the court. The clerk’s certificate under which the sheriff acted did not refer to any action of the court at the July term, 1905, but recited that the court had made an order on the 8th of May, 1905, and the certificate itself was dated June 6, 1905.

The property was knocked off to Mrs. Baird at $300 which sum she paid; $28.66 thereof was applied to paying of costs of the sale, and the balance, $271.34, was credited on the mortgage bond; after which, October 21, 1905, Mrs. Sutton paid the balance that was due on her mortgage and the clerk of the county court on that date, as the statute required, cancelled the bond and satisfied the mortgage on the record.

Afterwards litigation over the title began. Mr. Welborn, who had purchased from Mrs. Baird, brought suit in ejectment against Mrs. Tubb, the defendant in this suit; in the course of that suit it was developed that the defendant disputed the plaintiff’s title on the ground that the county court did not order the sale under which Mrs. Baird bought, and when that fact appeared the circuit judge intimated that the point was well taken, whereupon the plaintiff, Welborn, dismissed his suit, and afterwards went before the county court and obtained an order reciting the bond and the mortgage and the conditions thereof and concluding: “And now on this 6th day of February, 1907, the court finds that default has been made in the payment of said sum of money according to the tenor and effect .of said bond, and that the said Louise Sutton is now indebted to the county of Butler to the use and benefit of the capital school fund in the sum of eight hundred and nineteen dollars and eighty-six cents, principal and interest, computed to this date, due and unpaid on said bond. Wherefore-,” etc. The order goes on to enter judgment against Mrs. Sutton and the sureties for the amount on the bond and an order of sale to be addressed to the sheriff.

This proceeding was nearly two years after the mortgage debt had been paid, and satisfaction entered on the record by the clerk as the statute required. A certified copy of that order was delivered to the sheriff and he went through the form of making a sale thereunder, and the property was struck off to Welborn for thirty-one dollars, which just covered the cost of that proceeding. Plaintiff relies on that deed as curing the defect in the former sale.

Plaintiff’s learned counsel speak of this order of February, 1907, as an order nunc pro tunc, but in that they are mistaken; this order has no characteristic of an order nunc pro tunc. When a court at a former term has madie an order or rendered a judgment which should have been then entered on the record but was not, it may be entered at a subsequent term as now for then, provided the court has a sufficient memorandum of its own to show that the order or judgment had actually been made at the former term; but when entered it is not tbe order or judgment now made but that which was then made. This order which was made in 1907 does not purport to be the record of an order made in 1905, it makes no reference to an order made at a former term. It is in all respects in form an original order, calculating interest on the bond down to date and declaring that the mortgage was then due and unpaid. And there could not have been an order then made nunc pro tunc because there was no sufficient evidence before the court on which to base such an order.

Evidence introduced by plaintiff shows that the county court, when it made the order February 6, 1907, knew that this mortgage had been paid and that the circuit court in another suit had intimated that the plaintiff’s title was defective for want of an order of sale and knew that the purpose of this proceeding in 1907 was to supply that defect. But whatever the county court may have thought of the merits of the case, it had no right to enter an order on its record saying that the mortgage was due and unpaid and on that statement order a sale of tbe land, and the plaintiff well knowing all those facts does not strengthen her cause by bringing that proceeding forward and relying on it. That was a fictitious proceeding and plaintiff derives no title through it.

Going hack to the certificate of the clerk June 6, 1905, plaintiff relies on the decision in Fontaine v. Hudson, 93 Mo. 62, l. c. 69-70, where it was held that an execution was valid though issued eo instanti on the rendition of the judgment, before the judgment had actually been written into the record; that it was sufficient if the record evidence is in existence when proof of the judgment becomes necessary. But in the case at bar the record evidence was not in existence when the proof of the judgment became necessary; there was no lawful evidence that there ever was such a judgment. The clerk’s order to the sheriff to sell the property to foreclose the mortgage reciting therein that the county court had theretofore made an order to that effect was an unauthorized act; the only act in that regard that the statute authorized the clerk to perform was to make a certified- copy of the order of the court and deliver it to the sheriff. But of course there could have been no certified copy of such an order because there was no such order. The sheriff reported the sale to the eouni'y court and that court approved it, but the court could not by its approval give validity to an unauthorized act.

Respondent in her brief says that appellant cannot attack the sheriff’s deed collaterally, but only by a hill in equity. Appellant is not seeking to have the sheriff’s deed annulled, she is simply defending her possession in an action of ejectment to which she has answered by a general denial, and when the plaintiff offers proof of her title the defendant objects to it for infirmities apparent on its face. Plaintiff in her action of ejectment must make legal proof of her title, otherwise she cannot recover. Her learned counsel in their brief make an argument on what they call the equity of the case, but .this is a law suit in which legal titles must prevail.

Plaintiff has failed to show that she has a legal ' title to the land in question, therefore she is not entitled to recover. The judgment is reversed.

All concur.