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but gave the following instructions for plain- stances proven, and, if you find he did so tiff: "(1) The court instructs the jury that agree, your verdict should be for the defend. it was the duty of the defendant, as circuit

ant.

If you believe the plaintiff consented clerk, when the change of venue was taken to the withholding of the papers, or had to Schuyler county, to immediately make out knowledge of the same being withheld, to a transcript of the record and proceedings await the contemplated or proposed arbitrain the cause, including the petition and affi- tion, and did not object to such withholding, davit and order of removal, and transmit your verdict should be for the defendant." the same, duly certified, together with all

C. T. Llewellyn, for appellant. 0. S. & the original papers filed in the cause and

G. M. Calliban, for respondent. 'not forming a part of the record, to the clerk of the circuit court of Schuyler county; and

BLAND, P. J. (after stating the facts). 1. unless you believe that plaintiff, Charles T.

The statute on which this suit is bottomed Llewellyn, authorized or agreed for the de

reads as follows: Section 825, Rev. St. 1899: fendant to withhold sending said transcript

“After Change, Clerk to Transmit Record. and papers, then your verdict will be for

When any such order shall be made by the the plaintiff. (2) The court instructs the

court or judge, the clerk shall immediately jury that it makes no difference that the

make out a full transcript of the record and transcript and papers could have been sent

proceedings in the cause, including the petiafter defendant went out of office and in

tion and affidavit and order of removal, and time for the case to be tried at the next

transmit the same, duly certified, together term of circuit court of Schuyler county.

with all the original papers filed in the cause, Still, if you believe defendant, without any

and not forming a part of the record, to authority from plaintiff and without plain

the clerk of the court to which the removal is tiff's knowledge and consent, withheld said

ordered, and for failure to do so shall forfeit transcript and papers, and failed to send

one hundred dollars to the party aggrieved, them before he did go out of office, then you

to be recovered by civil action." If the court will find for plaintiff. (3) The court instructs

was correct in refusing plaintiff's peremptory the jury that it was the duty of the defend

instruction, then the judgment should be ant to immediately transmit the record and

affirmed, as the giving of instructions for the papers in the case of Llewellyn v. Llewellyn

defendant is not assigned as one of the to the Schuyler county circuit clerk, unless grounds for new trial in the motion therefor, he was notified by both the plaintiff and the

and for this reason they are not reviewable. defendants in said cause, or their attorneys,

State y. Headrick, 149 Mo., loc. cit. 401, 51 S. not to send said papers and transcript im

W. 99; Fullerton v. Carpenter, 97 Mo. App., mediately. (4) The court instructs the jury

loc. cit. 201, 71 S. W. 98. that the plaintiff does not have to prove any The uncontradicted evidence shows that pecuniary loss or damage, or that he is ag

the Schuyler circuit court did not convene, grieved; but the law presumes that he is after November, 1902, until May 4, 1903, and aggrieved if you find that the clerk did with. the defendant went out of office on January hold the transcript and papers on change of 1, 1903, at which time he turned over his ofvenue without the plaintiff's authority or fice and delivered the transcript and papers consent." The court refused instructions

in the partition suit to his successor. Thereasked by plaintiff, which, if given, would after it became the duty of his successor to have cut out the defense, root and branch. make the transmission, and if he negligently

The court gave the following instructions failed to do so in time to have the cause for defendant: "(1) The court instructs the docketed for the May term, 1903, of the jury that unless they believe from the evi- Schuyler circuit court, the defendant is not dence that the holding up of the transcript responsible for such negligence. I think until the expiration of Spangler's term as cir. the evidence shows that the transcript was cuit clerk prevented the said plaintiff from negligently withheld; but the question in the securing a speedy trial, and that he was case is, should that negligence be ascribed to thus aggrieved thereby, you will find for the defendant? He admits in his answer and defendant. (2) If you believe from the great in his testimony that he withheld the traner weight of evidence that an arbitration of script, after he had it ready for transmission, the case of Charles T. Llewellyn v. George for something like a month, and until after Llewellyn et al., which had been removed to the expiration of his term of office. He circuit court of Schuyler county by change of thereby tacitly confesses that he violated the venue, was contemplated and pending by the letter of the statute, but offers to justify his parties, and on account thereof at the knowl- conduct by showing that he did not violate edge or consent of plaintiff defendant with- the spirit of the statute by what transpired held the transcript until his term of office ex- between himself, and Mr. Whiteside, the atpired, your verdict should be for defendant. torney representing plaintiff's adversary in (3) In passing upon the question as to wheth- the partition suit. I think the evidence er or not plaintiff authorized or agreed to the shows that both Whiteside and the defendwithholding of the transcript, you may take ant acted in perfect good faith. I think it into consideration all the facts and circum- also shows that, while the plaintiff did not accede to the proposition to arbitrate the suit as is reasonably necessary for performing when first made to him by Whiteside, he did these duties. State v. Clevenger, 20 Mo. App. not refuse to consider it, but did consider it, 626; City of De Soto v. Merciel, 53 Mo. App., * and afterwards agreed to it. This evidence loc. cit. 60. If due regard is given to the not only shows that Whiteside acted in good nature and circumstances of the things to be faith in requesting defendant to withhold the done and the purposes to be accomplished, I transcript, but that the plaintiff's conduct do not think it can be said, as a matter of warranted Whiteside to believe the matters law, that the defendant was negligent, or in dispute between plaintiff and his brother, that he violated the spirit of the statute, in George Llewellyn, including the partition withholding the transcript under the circumsuit, would be submitted to arbitration. In stances shown in evidence, especially in view these circumstances, Whiteside was justified of the fact that he did not withhold it be in taking steps to prevent the further ac- yond a day when it could reasonably have cumulation of costs in the suit, and in ask- been transmitted to the clerk of the Schuyler ing that the transmission of the transcript circuit court in time to bave been placed upbe with held until the proposition to arbitrate on the May term, 1903, docket of that court. should be finally settled, especially in view The evidence shows that defendant's sucof the fact that the Schuyler circuit court cessor might have transmitted the transcript would not convene for more than four at any time within two or three months after months, and withholding of the transcript he took charge of the office and of the papers was, apparently, as much to the interest of in the case, in time for the case to have ap the plaintiff as to the interest of Whiteside's peared on the May term, 1903, docket of the client. The evidence also shows that there

Schuyler circuit court. If this had been was ample time, after the proposition to ar- done, plaintiff would not have had any bitrate was declared off by plaintiff, to have ground to complain of the delay in the transtransmitted the transcript to the clerk of mission, and certainly no cause of action the Schuyler circuit court in time to have against this defendant, based on the statute; bad it docketed for the May term, 1903. for the purpose of the statute to secure a

But it is contended by plaintiff that, as the speedy hearing-would have been as fully defendant was not instructed by him, or by performed as if the transcript and papers had any one for him or representing him, to with- been transmitted by defendant in December, hold the transcript, what Whiteside told de- 1902. For these reasons, I do not think the fendant furnished no justification to him for court committed error in refusing the prewithholding the transcript. The purpose of emptory instruction to find for plaintiff, nor the statute is to prevent unreasonable de- in refusing such of plaintiff's instructions as lay or negligence in the making out and would have practically withdrawn the case transmission of transcripts of causes in from the consideration of the jury. which a change of venue has been awarded, 2. Objections were made to the introducand to secure an early opportunity for the tion of some of the evidence. The grounds trial of such causes in the courts to which of these objections are not specifically stated, the venue has been changed. What is meant and I do not discover that any inadmissible by the term "immediately," as used in the evidence was admitted at the trial. statute, is that the transcript shall be made Discovering no reversible error in the rec out and transmitted in such convenient time ord, the judgment is affirmed. All concur.

decided. Childs V. Railroad, 117 Mo. 414, HARKNESS et al. V. JARVIS et al. 423, 23 S. W. 373. So, therefore, the only (Kansas City Court of Appeals. Missouri.

question for us to decide is whether a moJan. 20, 1902.)

tion filed during the term, but more than 1. JUDGMENT-DEFAULT_VACATION_TIME.

fuur days after the judgment, and not reachWhere a motion to set aside a default judg. ed or acted on, is continued over to the next ment was filed at the same term at which the

term of court, in the absence of its being calljudgment was entered, but more than four days

ed up and continued over, or of a general thereafter, and the motion was undisposed of at that term, the court had jurisdiction to grant

order of continuance. It is undeniable that the same at the succeeding term, though no gen- the legal right exists to file the motion dureral or special order of continuance was entered. ing the term after the four-days limit. It 2. APPEAL-OPENING DEFAULT JUDGMENT

becomes a part of the proceeding in the case, DISCRETION-REVIEW. An application to set aside a default judg

and the fact that it remains undisposed of ment being within the discretion of the court, an

at the end of the term must show that it order granting the same will not be interfered was intended to be carried over to the next with on appeal, in the absence of a clear show

term. If pending cases are not continued ing of abuse of such discretion.

by special order, and no general order is Appeal from Circuit Court, Jackson Coun

made, no one would suppose that such acty; John W. Henry, Judge.

tions would abate. The practice in this state Action by L. V. Harkness and others

has been to continue docketing such cases in against Frank Jarvis and others. From an

such instances until disposed of. So a moorder setting aside a default judgment after

tion for new trial which is undisposed of is the term, plaintiffs appeal. Reversed, and

continued over to succeeding terms without certified to the Supreme Court.

either a special or general order. Givens v. See 81 S. W. 446.

Van Studdiford, 86 Mo. 149, 56 Am. Rep. 421; J. C. Williams and L. A. Laughlin, for

St. Francis Mill Co. v. Sugg, 142 Mo. 364, 44 appellants. H. S. Hadley, for respondents. S. W. 249. It being clear that a cause undis

posed of, and a motion for new trial filed ELLISON, J. Plaintiff brought this action, within four days and undisposed of, are each returnable to the January, 1901, term, to re- continued to the succeeding term without cover judgment on a promissory note. There an order, it ought to be equally clear that no was personal service on defendants; but, order is necessary to carry over an undisposed when the case was called for trial at said of motion for new trial, filed without the January term, defendants did not appear, four days. The court has no power to pass neither did they file an answer. Judgment on either motion at a subsequent term, exwas rendered for plaintiff by default. After cept by force of the continuance, and we canthe expiration of the four days' time allowed not see why a continuance would be allowed for motions for new trial and in arrest of without an order in the one and denied in the judgment, but at the same term, the defend- other. If it be conceded that the court has ants filed a motion to set aside the judgment the power to continue a motion filed after for reasons therein alleged. The motion was the four days, by taking it under advisement not acted on by the court at that term, but

until the next term, it must follow that the went over to the following April term with- motion can be continued without being under out any special order of continuance. At the advisement; for, if it is a question of power, latter term the motion was' sustained, and the court cannot, of course, hold a matter plaintiffs have appealed.

under advisement beyond the period in which The plaintiffs challenge the power of the it has the power to act. The whole matter, circuit court to set aside the judgment on it seems to us, is this: The continuance the motion aforesaid, made at a subsequent to a subsequent term carries along the power term. They agree that the court had the to act at that term, and such continuance, power to do so at any time during the term, is had when the motion is undisposed of, and that, though the motion was filed more without an order either general or special. than four days after the judgment, if the Authorities supra. court had taken it up during the term and There need be little said on the merits continued it, such action would have carried of the motion. The Supreme Court has it over to the succeeding term, with power in many times stated and enforced the propothe court to act upon it. But they contend sition that large discretion rests with the that, not having been taken up and contin- trial court in acting on motions to set aside ued, the court's power ended with the term. judgments by default. Bank v. Armstrong, They are sustained in this view by the major- 92 Mo, 265, 280, 4 S. W. 720, and authorities. ity opinion of the St. Louis Court of Appeals cited. And it has been said that it is less in Head V. Randolph, 83 Mo. App. 284; apt to interfere with such discretion, where Judge Biggs, dissenting. We find ourselves the judgment is set aside, than when it is in disagreement with that court. The Su- not. This for the reason that, when set aside, preme Court held that a motion to set aside the case is yet open, and that justice will a judgment, filed more than four days after yet be done. Helm v. Bassett, 9 Mo. 55. it was rendered, but at the same term, may And the courts of appeals have followed be continued to a succeeding term, and then this view. Longdon v. Kelly, 51 Mo. App.

88 S.W.-65

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572; Ensor v. Smith, 57 Mo. App. 584. The that reason, hold that appellant has no es. record in this case does not disclose anything istent rights in the franchise conferred by whereby we can be justified in saying that that ordinance. It is sufficient to say, in the discretion was abused.

response to that contention, that the condiBut, our decision on the first point, being tion upon which the power of revocation contrary to that of the St. Louis Court of

rests—i. e., the refusal of the county court Appeals in Head v. Randolph aforesaid, we

to confirm the right of way over the free order the case certified to the Supreme Court

bridge is not shown either in the pleadings as required by the Constitution. All concur.

or proof in this case to exist. Appellee's complaint alleges that application to the county court to confirm the right of way had

never been made, and appellant's answer exLITTLE ROCK RY. & ELECTRIC CO. V. CITY OF NORTH LITTLE ROCK.

pressly admits this to be true. J. A. Tra

wick, the manager of appellant company, (Supreme Court of Arkansas. Sept. 30, 1905.)

testified (which was all the testimony on the 1. STREET RAILWAY FRANCHISE-AUTHORITY TO REVOKE-PRESENTATION OF QUESTION.

subject) that no application was made to Where, in a suit to annul a street railway the county court, though he had reason to franchise conferred by ordinance providing

believe, he says, from information received, that, before the franchise should be enjoyed, the company should obtain from the county court

that permission to cross the bridge would not a confirmation of the right of way over a be granted. The question of revocation is bridge, the complaint alleged that application therefore not presented to us in this record, to the county court to confirm the right of

and we cannot properly pass upon it. way had never been made, and the answer admitted the allegation, and the only proof was

We merely held in the former opinion the testimony of the company's manager that that Ordinance No. 1002 conferred a valid no application was made to the county court,

franchise, and that at the time of the comand that he had believed that permission to cross the bridge would not be granted, the

mencement of this suit an unreasonable time question of the authority to revoke the fran- for the performance by the grantee of the chise on the refusal of the county court to conditions precedent therein named had not grant permission was not presented.

elapsed. Whether or not it is now too late 2. APPEAL-SUPREME COURT-INJUNCTIONPower To GRANT-PROVISIONAL RELIEF.

for appellant, under the circumstances, to The Supreme Court, on appeal from perform them and preserve the granted decree annulling a street railway franchise, has rights; whether the power of revocation passno authority to restrain the city from interfer

ed to appellee upon the disannexation of ing with the tracks constructed under the fran. chise before the commencement of the suit,

territory, and, if so, under what circumpending further proceedings by the company to stances it may be exercised; and whether or test its rights under a municipal ordinance; not appellant may proceed to the enjoyment that being a provisional relief to be awarded by the court in which the further proceedings are

of the franchise without obtaining from the instituted, subject to review on appeal.

county court the right of way over the bridge On petitions for rehearing

—are all questions which we have not deOverruled.

cided, and do not deem it necessary or proper For former opinion, see 88 S. W. 826.

upon the record in this case to decide. They Rose, Hemiogway & Rose, for appellant. must be brought before us in proper proceedJames P. Clarke, for appellee.

ings and upon appropriate allegations and

proof before a determination can be reached. McCULLOCH, J. Both parties seek a re- Appellant asks, further, that the judgment hearing of the cause. Appellant asks that we of this court be modified, so as to permit the set aside that part of the decision holding tracks constructed under the franchise by apthat Ordinance No. 1019, passed August 10, pellant before the commencement of this suit 1903, is void, and that appellant acquired no to remain in the streets of North Little Rock rights thereunder, and appellee asks that we pend further proceeding by appellant to set aside that part of the decision holding test and secure enjoyment of its alleged that Ordinance No. 1002, passed June 25, rights under Ordinance No. 1002, and to re 1903, conferred a valid franchise. Upon con- strain said city from disturbing said tracks sideration we adhere to the conclusion here- during such further proceedings. This, howtofore announced, and both petitions for re- ever, is provisional relief, which must be hearing will be overruled.

granted, if at all, by the court of original Counsel for appellee insists that, when the jurisdiction in which such further proceeding disannexation of territory was accomplished, is instituted, subject to review on appeal. the power reserved in Ordinance No. 1002 by We cannot grant it in this suit. Nothing in the city of Little Rock to revoke the franchise this decision will bar such relief, if appellant upon the refusal of the county court to con- be shown in other respects to be entitled to firm the right of way over the free bridge, it. Following the decree of the chancellor, as well as all other rights and powers re- appellant has in the original judgment here served to that municipality, passed to the been allowed 60 days in which to dispose of city of North Little Rock, and that the latter or remove the tracks and material now on could then properly exercise the power of the streets of North Little Rock, and said revocation. He contends that we should, for period will run from this date.

To that extent the judgment heretofore entered here will be modified. In all other respects it will stand.

N. B. Scott, E. A. Bolton, Garland Street,
and James P. Clarke, for appellees. P. C.
Dooley, for appellees W. H. Graves and B.
F. Merritt.

WOOD, J. Appellee is in possession of CRACRAFT V. MEYER et al.

certain tracts of land in Chicot county, Ark., (Supreme Court of Arkansas. July 29, 1905.)

under deeds from the State Land Commis1. TAXATION-DEEDS-EFFECT AS EVIDENCE.

sioner, based upon a forfeiture of the land Rev. St. 1837, c. 128, 88 133, 134, required for the nonpayment of taxes. Her deeds are the auditor to execute deeds to purchasers of

dated December 24, 1891, and July 23, 1897, lands forfeited to the state for nonpayment of taxes, and provided that such deeds should vest respectively. She has made valuable imtitle in the grantee, and should be received in provements, and has been in the adverse all courts as evidence of good title. Act July

possession of the lands since the deeds were 15, 1868 (Laws 1868, p. 62, § 1), created the office of Commissioner of Immigration and State

executed. Appellant brought ejectment Lands, and gave the control and disposition of against appellee for the lands in controversy, forfeited lands to the commissioner. Kirby's claiming title by deed of the State Land Dig. 8 4807, provides that all deeds issued by

Commissioner dated July 14, 1902, based up. the State Land Commissioner to forfeited land shall convey to the purchaser all the title of

on alleged Real Estate Bank foreclosure. the state to the land, and shall be received as 1. As early as March 5, 1838, our Legislaevidence in any court of the state. Held, that

ture passed an act requiring the auditor to commissioner's deeds to lands forfeited for nonpayment of taxes need not recite the taking of execute deeds to purchaser of lands forfeited the steps which vested title in the state, but to the state for the nonpayment of taxes, and the deed itself is prima facie evidence that all prescribing that such deeds "shall convey to preliminary steps necessary to title have been

the purchaser all the right, title, interest, and taken, and the burden is on the one attacking the same to show that some one of the pre

claim of the state thereto”; also that the requisites of the transmission of title was omit- deeds "shall vest in the grantee, his heirs ted.

or assigns, a good and valid title both in 2. SAME_OVERTHROW OF PRESUMPTION.

law and equity, and shall be received in all The fact that the record of deeds discloses no record of a deed to land which belonged to

courts of this state, as evidence of good and the state as Real Estate Bank lands, and which valid title in such grantee, his heirs or aswas not subject to forfeiture and sale for taxes,

signs, and shall be evidence that all things does not show that such land was not sold and afterwards forfeited to the state for nonpay

required by law to be done, to make good and ment of taxes, nor overthrow the presumption valid sale, were done both by the collector of sale which arises from the issuance of a tax and the auditor." Rev. St. 1837, c. 128, 88 deed by the State Land Commissioner.

133, 134. In Steadman v. Planters' Bank, 7 3. SAME – EXEMPTIONS SALE OF EXEMPT

Ark. 427, this court, passing upon this statLANDS-EVIDENCE. Under section 3, p. 97, Acts 1866–67, which

ute, said: "Our statutes have changed the exempted lands of the Real Estate Bank from rule of law that it is incumbent upon the purtaxation while in the hands of the receiver, and chaser of lands sold for taxes to show that required the receiver, upon sale by him of any

the sale was regular, and that the prereqof such lands, to furnish the assessor with a correct list of the land sold for assessment in

uisites to the sale existed, and were strictly the name of the purchaser, the listing of such complied with. The auditor's deed executed land for taxation is evidence of the sale thereof

in accordance with the provisions of the statby the receiver.

ute vests in the purchaser all the right, title, 4. SAME.

An act of 1867 exempted lands of the Real interest, and estate of the former owner in Estate Bank from taxation while in the hands and to such lands, and also all right, title, of a receiver. In a proceeding to wind up the interest, and claim of the state thereto, and affairs of the bank the receiver was directed to make a list of all the lands in his hands, so

is declared to be evidence in all courts of this that the same might be offered for sale. He state of a good and valid title in such accordingly made such list, and in his report of grantee, his heirs and assigns, and that all sale stated that he omitted from sale certain

things required by law to make a good and lands, as he was fully convinced by conclusive evidence that the bank had disposed of its in

valid sale were done both by the collector terest therein. The sale and the report were

and auditor." In Merrick and Fenno V. confirmed by the court. Held, that such report Hutt, 15 Ark. 331, this court, speaking of of the receiver and confirmation thereof by the

this statute, said: "A more comprehensive court constituted evidence which tended to strengthen the presumption which arose from provision could hardly be found, and it the subsequent issuance of a tax deed by the might seem at first view to make the tax State Land Commissioner to land omitted from

title derived from the auditor valid against the sale that such land had been sold.

all objections. But that was not the deAppeal from Circuit Court, Chicot County; sign. The evil to be remedied was that the Zachariah T. Wood, Judge.

entire burden of proof was cast on the purAction by George K. Cracraft against Car

chaser to show that every requisite of the rie Meyer and others. From a judgment for

law had been complied with, and the deed defendants, plaintiff appeals. Affirmed. of the officer was not even prima facie evi

dence of the facts therein stated. The inB. F. Merritt, Robinson & Beadel, and tention and scope of the statute was to Rose, Hemingway & Rose, for appellants. change this rule so far as to cast the onus

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