Missouri Court of Appeals, 1935

Juden v. Grant

Missouri Court of Appeals · Decided December 3, 1935 · Becker, Hostetter, Me-Cullen

88 S.W.2d 231; 232 Mo. App. 1; 1935 Mo. App. LEXIS 140 (South Western Reporter, Second Series)

Counsel

J. Grant Frye for appellant. (1) A judgment exists and is valid when rendered by the court although through neglect or failure of the clerk it is not formally written into the permanent records; and the enforcement of the judgment does not depend upon its formal entry if in fact it has been duly rendered. It is the rendition of the judgment that makes it efficacious and not the ministerial act of writing it up. Fontaine v. Hudson, 93 Mo. 62 , 5 S.W. 692, 694; Pelz v. Bollinger, 180 Mo. 252 , 79 S.W. 146; State ex rel. Green v. Henderson, 164 Mo. 347 , 64 S.W. 138, 141; State ex rel. Garvey v. Buckner, 272 S.W. 940 , 943; Marsden v. Nipp, 30 S.W.2d 77 , 81; Ex Parte Mitts, 278 S.W. 1047 ; 23 C.J. 318; 34 C.J. 52-53-55. (2) The party in whose favor any judgment, order, or decree is rendered, may have an execution in conformity therewith immediately without awaiting for the clerk formally to enter it upon the records. Fontaine v. Hudson, supra; Section 1152, R.S. Mo. 1929; Rumsey v. Peoples Ry. Co., 114 Mo. 175 , 46 S.W. 144, 148; In re Craig, 130 Mo. 590 , 32 S.W. 1121, 1122. (3) In a suit for delinquent taxes or in any case where a special execution is issuable on a judgment, the right to the execution follows eo instanti upon the rendition of the judgment. Fontaine v. Hudson, supra; Smith v. Rogers, 191 Mo. 334 , 90 S.W. 1150. (4) "It is axiomatic that if a party has a full, complete, and adequate legal remedy, he had no right to equitable relief." Williams v. Walker, 62 S.W.2d 840 , 842. (5) Plaintiffs state themselves out of court when they allege that the proceedings they seek to set aside are void on their face, for in such cases the remedy at law would be adequate and ample. McClanhan v. West, 100 Mo. 309 , 13 S.W. 674, 676; Janney v. Spedden, 38 Mo. 396 , 402; Lenox v. Harrison, 88 Mo. 491 ; McPike v. Pew, 48 Mo. 525 ; Barrow v. Davis, 46 Mo. 394 ; Hopkins v. Lovell, 47 Mo. 102 ; Jacobs v. Cauthorn, 238 S.W. 443 ; Overall v. Reunzi, 67 Mo. 403 . (6) "Equity will not interfere to prevent a multiplicity of suits, unless the questions involved are of equitable cognizance. The mere fact that there is a community of interest in the questions of law and fact presented by a given controversy, or in the kind and form of relief demanded by or against each of several individuals, will not warrant such interposition." Ballew Lumber Co. v. Mo. Pac. Ry., 288 Mo. 473 , 232 S.W. 1015 . (7) If an injunction is granted to stay any judgment or legal proceedings, the injunction should restrain only so much of the recovery or the enforcement as plaintiff shall show himself equitably entitled to be relieved against; and if the injunction should issue to restrain a sale under the tracts of land insufficiently described, it should not have issued as against the tracts adequately described. Section 1505, R.S. Mo. 1929; Wiel v. Richardson, 24 S.W.2d 175 . (8) Equity cannot be resorted to to prevent a cloud being cast on the owner's title except in cases where some extrinsic evidence, not shown on the face of the judgment attacked, is necessary to show the equities and injuries involved; and as in this case the whole matter of the validity or invalidity of the descriptions appears on the record, it is patent whether or not the judgment is adequate or is void. Payne v. Daviess County Anns., 126 Mo. App. 593 , 105 S.W. 15; Marsala v. Gentry, 232 S.W. 1046; Henman v. Westheimer, 110 Mo. App. 191 , 81 S.W. 101 ; St. Louis-San Francisco Ry. v. Lowder, 138 Mo. 533 , 39 S.W. 799. (9) Plaintiffs are not entitled to maintain an injunction to restrain the collection of the taxes unless they have paid or tendered the taxes confessedly due. Overall v. Reunzi, supra; St. Louis-San Francisco Ry. Co. v. Gracy, 28 S.W. 736, 738, 29 S.W. 579, 126 Mo. 472 ; Porter v. Boyd Paving Co., 214 Mo. 1 , 112 S.W. 235. (10) The fact that part of the injunction plaintiffs were not made parties to the tax suit could only affect the validity of the judgment as to those who were made parties and could have no effect whatsoever as to the plaintiffs not made parties, because as to them it was an absolute nullity on its face, and could cast no cloud upon their title and furnish no ground for equitable relief. Fontaine v. Hudson, 93 Mo. 62 , 5 S.W. 692, 694-5. (11) An injunction will lie where real estate is being sold under an execution against a person having no interest in such real estate subject to execution, where by such sale a cloud would be put on the title or an irreparable injury to be done to the property, as where land held in bare trust was being sold on an execution against the trustee; but no cloud would be put upon the title of the injunction plaintiffs who were not made a party to the tax proceedings as their title would be unaffected by a judgment enforced against one of their number who was an injunction plaintiff but not a tax case defendant. Section 1519, R.S. Mo. 1929; Gardner v. Terry, 99 Mo. 523 , 12 S.W. 888; Payne v. Daviess County Ass'n, 126 Mo. App. 583 , 105 S.W. 15; Church v. Hintze, 72 Mo. 363 ; Charter Co. v. Cummings, 90 Mo. 267 , 2 S.W. 397. (12) The plaintiffs in the injunction case did not show any title in themselves, as there was no showing that their grantors ever had any title to convey to them under the deeds introduced in evidence. Fontaine v. Hudson, supra. Giboney Houck, W.E. Coffer, and Brandom Hope, for respondents. (1) It is well settled that a cause must be heard in the Appellate Court upon the same theory as that upon which it was tried in the trial court. La Crosse Lumber Co. v. Powell, 247 S.W. 1022, l.c. 1024; Beyer v. Coca-Cola Bottling Co., 75 S.W.2d 642, l.c. 645. (2) Since defendants told the trial court that they were not contesting the issuance of an injunction against the execution of July 8, 1931, and the levy thereunder, defendants' objection thereto on appeal should be ignored. Section 1061, R.S. Mo. 1929. (3) Certainly there is no error in the wording of the injunction affecting the substantial rights of defendants, and therefore there is, in any event, no reversible error. Sections 821 and 1062, R.S. Mo. 1929. (4) It also seems to respondents that none of the other questions raised by appellants are at issue on this appeal, under the pleadings and record herein. State ex rel. Grant v. Juden, 50 S.W.2d 702, 705. (5) The descriptions contained in the petition, and the judgment as corrected on December 29, 1932, are so indefinite as not to describe any land whatever. Western v. Flanagan, 120 Mo. 61 ; Lowe v. Ekey, 82 Mo. 286 ; State ex rel. v. Burrough, 174 Mo. 700 ; State ex rel. v. Sanford, 127 Mo. 368 , 372; State ex rel. v. Wabash Ry. Co., 114 Mo. 1 ; State ex rel. v. Hamilton, 293 S.W. 378; State ex rel. v. Linney, 192 Mo. 49 ; O'Day v. McDaniel, 181 Mo. 529 ; Ross v. Ross, 83 Mo. 100 . (6) It is provided by statute that proceedings by injunction to stay a judgment shall be had in the county where the judgment was rendered. Section 1501, R.S. Mo. 1929. The remedy by writ of injunction or prohibition shall exist in all cases where an irreparable injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever in the opinion of the Court an adequate remedy cannot be afforded by an action for damages. Section 1519, R.S. Mo. 1929. (7) This injunction suit was a direct attack on the execution of July 8, 1931, and the levy thereunder; but a judgment for taxes, to be safe from even a collateral attack, must on its face or upon the whole record appear to be lawful. Cooper v. Gunter, 215 Mo. 558 . (8) An injunction to restrain a sale under execution is within the meaning and intent of the statute. Carthage Nat. Bank v. Poole, 160 Mo. App. 133 , 142. (9) The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created. It is the true policy of the courts to prevent litigation. Gardner v. Terry, 99 Mo. 523 , 526. That the proceedings were void, and that plaintiffs may have had a legal remedy, do not prevent plaintiffs from having equitable relief. Verdin v. City of St. Louis, 131 Mo. 26 , l.c. 79, 100; Pocoke v. Peterson, 256 Mo., l.c. 518, 519.

Opinion of the Court

*4 BECKER, J.

This is a suit for an injunction which was brought by plaintiffs, the owners of certain real estate located in Cape Girardeau county, to restrain and enjoin defendants, in their respective capacities of collector of revenue and sheriff of said county, from further attempting and proceeding to sell plaintiffs’ said real estate under a certain special execution issüed upon a judgment theretofore rendered by the Cape Girardeau Court of Common Pleas against the *5 plaintiffs herein in a suit for delinquent taxes. The appeal is by the defendants from the judgment of the court awarding plaintiffs a permanent injunction.

Perhaps the issues now involved on this appeal will be made more easy of comprehension if we state the history of the ease in chronological order.

. On December 31, 1928, the county collector instituted an action against the respondents herein as the joint owners of seven separate tracts of land in Cape Girardeau county to collect certain alleged delinquent taxes upon the same. The real estate was described in the petition by official survey, and in due time respondents filed their answer in said suit, admitting the ownership of certain real estate in the county, but denying that the petition contained a correct description of the real estate as required by law.

The respondents made no further appearance in the tax suit; and on January é, 1930, judgment was rendered against them for the sum of $962.55, representing taxes, fees, and costs, the judgment as entered simply reciting that the cause was dismissed as to three, and entered as to four, of the tracts of land upon which taxes had been alleged to be delinquent.

On July 8, 1931, a special execution was sued out on the above judgment, pursuant to which the sheriff levied upon and began proceedings looking to the sale of the real estate in question. However, on August .3, 1931, before a sale had taken place, respondents instituted the present suit for an injunction to restrain appellants from any further proceedings under said execution and levy, the suit being based upon the idea that the judgment in the tax suit, by reason, among other things, of the inadequacy of the description of the real estate against which the judgment had gone, was insufficient to support the levy and sale under the execution.

Upon the filing of the petition in the injunction suit, the court ordered that a temporary injunction issue against appellants as prayed, enjoining them from advertising for sale or selling or in any way attempting to sell the real estate in question under and by virtue of the judgment in the tax suit and the special execution theretofore issued thereon.

Now as a matter of fact the judgment entered in the tax suit had been patently irregular and insufficient when measured by the requirements of section 9956, Revised Statutes of Missouri 1929 (Mo. St. Ann., sec. 9956, p. 8000), which prescribes specifically what the formal recitals of a judgment in a suit for back taxes shall be; and recognizing this fact, the collector, after the institution of the present injunction suit, filed in the tax suit his motion for an order nunc pro tunc to correct the defective judgment rendered therein as respects the description of the real estate upon which taxes were delinquent. After *6 a hearing before the court, his motion was denied, from which order and decision he duly prosecuted his appeal to this court, wherein, on June 7, 1932, the order of the lower court was reversed and the cause remanded for further proceedings upon the motion for an order nunc pro tunc not inconsistent with the views expressed in this court’s opinion. [State ex rel. v. Juden (Mo. App.), 50 S. W. (2d) 702.]

What this court held, in substance, was that inasmuch as the statute directs what the judgment in a tax suit shall be, it was to be presumed that the judgment rendered by the court therein was such a judgment as only could have been rendered by it; that the insufficient judgment rendered was therefore to be attributed to the mistake or misprision of the clerk; and that from the showing contained in the judge’s minutes the judgment should be corrected so that the tracts of land against which the judgment for delinquent taxes had gone might be described in the judgment conformably with the descriptions of the same contained in the petition. It should be borne in mind, however, that this court was not called upon and did not purport to say in its opinion whether the descriptions of the land as contained in the original petition were defective or not, the validity of such a judgment not being then before the court, but simply ruled that the judgment should be corrected upon the showing from the judge’s minutes so as to include the description of the land as they appeared in the petition in the case, and so to conform, as to matters of form at least, with the requirements of the statute.

Following the receipt of our mandate, the court on December 29, 1932, sustained the motion for an order nunc pro tunc and corrected the judgment so that it was at least sufficient as to form, though incidentally respondents are contending that even as corrected it is still invalid and unenforceable because of the insufficiency of the descriptions of the tracts of land along' with what they claim to be other defects in it. It is to be borne in mind, however, as we shall presently have occasion to point out in some detail, that the sufficiency of the judgment, even as corrected, is actually not an issue on this appeal, the present suit having been filed more than a year before the date of the entry of the corrected judgment, and relating wholly to proceedings had under an execution sued out on the judgment as it stood prior to its correction.

It appears that after the issuance of the temporary injunction and during the pendency of the appeal to this court from the lower court’s refusal to sustain the motion for an order nunc pro tunc to correct the judgment in the tax suit, the instant cause was continued from term to term by agreement of the parties until April 13, 1934, *7 when appellants filed their amended answer upon which the case was tried.

In such answer, appellants, ’after referring to all the proceedings had in the tax suit from the time of its institution until the time of the correction of the judgment nunc pro tunc, set up that the judgment as corrected was then full and complete as of the date of its original entry, and that the full amount thereof was still due and owing. They further denied that injunction was a proper remedy for respondents to assert; and they prayed that the temporary injunction theretofore issued be dissolved, and that they might have judgment for the damages to which they had been put because of the issuance thereof.

It is important to note that in -the course of such answer, when referring to the issuance of the execution of July 8, 1931, and the levy thereunder, appellants expressly admitted “that said execution has been withdrawn with consent of these defendants and they are not contesting that particular execution and levy.” Such admission in the answer is of significance because of respondents’ contention, which will presently appear, that this appeal is really upon a mooted question, the suit for an injunction having been directed solely to the execution of July 8, 1931,- and proceedings had pursuant thereto, and the same having been concededly withdrawn and abandoned with the consent of appellants long prior to the entry of the judgment herein. Thus not only did the answer itself so admit, but also during the trial of the case appellants’ attorney testified that the original execution which was being attacked in this suit had been withdrawn by agreement of the parties at the time this proceeding was begun.

Following the filing of such amended answer, respondents replied in the conventional form, and also filed their motion praying the court to make the temporary injunction permanent. Appellants thereupon filed their motion to dissolve the temporary injunction, and upon the issues as thus made up the causes in due course came on to be heard.

On April 27, 1934, the court entered its judgment in the cause, adjudging- that the temporary injunction theretofore granted was made permanent to the extent that appellants were forever enjoined from selling or in any way attempting to sell respondents’ real estate under and by virtue of any special execution and levy based upon the judgment in the tax suit as originally entered- on January 4, 1930, but specifically providing that such injunctive order should in no way affect the judgment as corrected nunc pro tunc on December 29, 1932, nor be so construed as to enjoin appellants from proceeding to sell the real estate or collect the judgment by virtue of any special execution issued on the judgment as corrected.

*8 It is from such judgment granting the permanent injunction that appellants have prosecuted their appeal to this court.

They make the point and argue at some length that there was no equity in respondents’ bill and that upon the entire record in the cause the permanent injunction should not have been granted, but in the view we take of the case appellants have no present cause to complain. This for the reason, as we have already indicated, that-the only matters at issue in this proceeding have long since been adjusted by agreement and consent of the parties, and that the judgment of the court awarding the permanent injunction actually does no more than conform to such agreement.

It is a very elemental principle of law and legal procedure that the existence of an actual controversy is an essential prerequisite to the assumption of appellate jurisdiction, and that abstract or moot questions disconnected from the granting of actual and practical relief will not be determined by an appellate court. [Fugel v. Becker (Mo. Sup.), 2 S. W. (2d) 743.]

In this instance it is to be kept in mind that the injunction suit now before the court was filed on August 3, 1931, and constituted an attack bj»- respondents solely upon the execution theretofore sued out on July 8, 1931, as well as upon the levy and further proceedings thereunder, all of which antedated by more than a year the correction of the judgment nunc pro tunc on December 29, 1932. Following the correction of the judgment nunc pro tunc, no amended petition was filed, and so respondents, in asking for injunctive relief, cannot be held to have raised any issue to be determined in this proceeding regarding the validity of the judgment as corrected.

The execution of July 8, 1931, was the only execution which was issued on the judgment in the tax suit, and the enforcement of such execution and the sale of the property pursuant to the sheriff’s levy thereunder, was all that was enjoined by the judgment appealed from awarding the permanent injunction. However, such execution had theretofore been withdrawn by the agreement and consent of the parties, so that appellants now find themselves in the position on this appeal of complaining about something in the doing of which they had in effect acquiesced. Nor, so far as their present rights are concerned, have appellants been in anywise harmed by the granting of the permanent injunction, because the injunction itself specifically provides that it is not to affect the judgment as corrected, nor is it to be construed as enjoining and restraining appellants from proceeding to enforce said judgment by virtue of any special execution that may hereinafter be sued out upon it as corrected. It follows, therefore, that so far as the issues raised in this case are concerned, there has been no actual and practical restraint imposed by the court *9 upon appellants, and so there is nothing before this court to be determined.

In this view of the case the judgment rendered by the court below should be affirmed. It is so ordered:

Hostetter, P. J., and Me-Cullen, J., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.