Hunter Land & Development Co. v. Jackson

*553 COX, P. J. Action to secure a permanent injunction to prevent appellant as sheriff from selling land of plaintiff’s under a fee hill issued by the clerk of the county court of Mississippi county. Upon trial, the judgment was rendered for plaintiffs perpetually enjoining defendant from making the sale and defendant has appealed. A petition signed by plaintiffs and others was filed in the county court of Mississippi county asking for the incorporation of a drainage district. The preliminary steps were taken in which considerable costs and expenses accrued. On final hearing the petition was dismissed and petitioners adjudged to pay the costs. Only a few items of cost were allowed by order of the county court. The clerk afterward issued a fee bill against plaintiffs for the costs and included therein all the items of cost found in the engineer’s report, though these items had not been approved and allowed by the court, at least as far as the record showed at that time. The sheriff demanded payment from plaintiffs and they refused to pay the items that had not been allowed by the court and he then notified them that he would levy on their land and sell it to enforce payment. This suit followed. The court finally found in their favor and made the injunction perpetual. While the trial was in progress, the county court made a nunc pro tunc entry allowing all the costs contained in the fee bill. This nunc pro tunc judgment was then offered in evidence and was admitted over plaintiffs’ objection. Plaintiffs then asked for a continuance of this case until a writ of certiorari could be sued out and the validity of the judgment nunc pro tunc tested. This was denied. The plaintiffs then offered all the orders of the court and the clerk’s minutes *554 and files in his office in relation to the whole matter. These were excluded at the time hut afterward admitted. The order of the county court dismissing the petition concluded as follows: “It is further ordered that all the costs in this case he and the same are hereby assessed against petitioners as follows (naming them) and that due process for all costs issue in this behalf including all engineering and other costs incurred in said cause.” The files had no endorsements on them except in one instance. A supplemental bill of costs incurred after the filing of the preliminary report of the viewers and engineers covering a few items had the letters “0. K.” and “L. P.” endorsed on the back. It was admitted that Lee Presson (presumably the county court clerk, though that fact is not shown) if present, would testify that these letters were the customary indication of the examination and approval of a bill by the county court and that they were placed on the bill after it had been examined by the county court as an indication of its approval. It was not shown that the first report which contained the main items in dispute had this or any other endorsement on it. It seems to be well settled in this State that a sale of real estate under execution may be enjoined in a proper case when the sale, if permitted to proceed, would cast a cloud upon the title. [McPike et al. v. Pen, Sheriff, et al., 51 Mo. 63; State to use Board of Education v. Tiedmann, 69 Mo. 306; Park v. People’s Bank, 97 Mo. 130, 11 S. W. 41; Goldie Construction Co. v. Rich Const. Co., 112 Mo. App. 147, 86 S. W. 587.] Is this case a proper one in which to invoke that remedy? The remedy by appeal from the judgment of the county court dismissing the petition by which the allowance of costs could be reviewed by the circuit court was cut off for the reason that no appeal would lie from that judgment of the county court. [Pemiscot County v. McCarty, 208 S. W. 450; Pemiscot County v. McCarty, 208 S. W. 452; Buschling v. Ackley, 270 Mo. 157, 192 S. W. 727; Elsberry Drainage District v. Meyer, 277 Mo. *555 439, 209 S. W. 913; State v. Norborne Land Drainage District Co., 234 S. W. 344.] In this case a part of the costs included in the fee bill had been regularly allowed by the county court and the fee bill was regular on its face, hence a sale under it would have conveyed title to a purchaser who was ignorant of the facts, and these facts are sufficient to call into operation the equity side of the court. Appellant insists, however, that respondent had an adequate remedy at law by motion in the county court to re-tax costs or recall the fee bill issued by the clerk at the time this suit was filed. The costs complained of had not been taxed so a motion to re-tax would not have been available. As to the motion in the county court to quash or recall the fee bill we do not think the county court would have had the authority to quash the fee bill had it been asked to do so. The county court is a court of limited jurisdiction and depends altogether upon the provisions of the statute for its warrant of authority to act. Looking to the statute, we find no provision therein that either directly or impliedly grants to a county court such power. Section 1675, Revised Statutes 1919, the only section granting power to any court to quash an execution, is found in the general code of civil procedure but does not apply to courts of limited jurisdiction such as the county court or a justice of the peace. [Brownfield v. Thompson, 96 Mo. App. 340, 70 S. W. 378; Carr v. Railroad, 108 Mo. App. 388, 83 S. W. 981.] The cases just cited passed on the question of the power of a justice of the peace to quash or recall an execution and-it was held that he did not possess that power. The reason assigned is, that a justice court is a court of limited jurisdiction and deriyes its powers from the statute, and has no inherent powers such as belong to courts of general jurisdiction and since the statute does not provide that a justice of the peace can recall or quash an execution issued by him, he cannot do it. A county court stands in exactly the same position. It derives its powers from the statute and since’the stat *556 uté does not grant to it the power to quash or recall an execution or fee bill, it does not possess the authority to do so. There was, therefore, no remedy open to respondent through possible action by the county court. That being true, the further rule, which is well recognized, that every court must control its own process and that one court cannot interfere with the process of another court does not apply. ' It is clear to us that when the fee bill in controversy was issued, the inclusion therein of fees and expenses that had not been audited and allowed by the county court was unauthorized and that part of the fee bill was void. The appellant seems to have realized that fact, and while this trial was in progress, the county court made a nunc pro tunc order in the attempt to eradicate that error. This nunc pro tunc was entered as of the date of the dismissal of the petition and showed that all the items included in the fee bill had been allowed by the county court. This nunc pro tunc judgment was then offered in evidence by appellant. To this respondent objected on various grounds. The objections were overruled and exceptions saved. Respondent then asked a suspension or continuance of the trial to give them time to prosecute a writ of certiorari in order to test the validity of the entry nunc pro tunc. This request was denied. The judgment nunc pro tunc was then admitted. In rebuttal the respondent offered all the court records, minutes and files in the matter before the county court for the purpose of showing that the nunc pro tunc order Was not authorized. These were at first excluded but were afterward admitted and the court finally held that the nunc pro tunc order was not authorized and then rendered judgment for respondents perpetually enjoining the collection of the fee bill. Appellant now insists that the entry nunc pro tunc was regular on its face and cannot be collaterally atacked and, whether based on sufficient record data or not, is binding in this case and renders the fee bill valid although it might not have been valid when issued. We think as a general proposition *557 that position is correct. [Collier v. Catherine Lead Co., 208 Mo. 246, l. c. 277, 106 S. W. 971.] In that case the record of the court in making the mmc pro tunc entry recited that it was made “from the minutes and records of the court and by proper record evidence.” The Supreme Court held that such a recital excluded the idea that the entry nunc pro tunc had been made upon any evidence other than the records, minutes and files in the cause and hence the judgment upon its fact recited facts sufficient to authorize it and could not be collaterally attacked. The recital of the county court in entering this order nunc pro tunc in this case does not come up to that standard. It reads: ‘ ‘ The court being satisfied from the files, minutes and records of the court and by proper evidence.” (The italics are ours.) This recital instead of excluding the idea that nothing was considered except the records, minutes and files, which were the only things that could properly be considered, shows that other evidence which the court designated as proper evidence was also considered. This judgment nunc pro tunc instead of being regular on its face and showing that no improper evidence was considered by the court shows affirmatively that some evidence other than the records, minutes and files was considered and hence shows upon its face that it was not properly entered. When this judgment nunc pro tunc was offered in evidence, the objection to it should have been sustained. Since the court at that time was of the opinion that he could not question the validity of that entry in this action, the application of respondent to be given an opportunity to then test it by certiorari before final judgment in this case, should have been sustained. Had the judgment below gone against respondent, this error would have entitled them to a reversal. Since the judgment went in their favor by the court changing its ruling and finally admitting the records and files for the purpose of impeaching the entry nunc pro tunc, it remains to be seen whether appellant is entitled to a reversal. As already stated, we think the judgment nunc pro tunc should have been excluded be *558 cause it shows on its face that it was not properly entered. Further, the records, minutes, and files were all before the trial court and are before us in this record and had the court delayed this trial and permitted respondent to sue out a writ- of certiorari to test the validity of the entry nunc pro tunc, as we think he could properly have done, we think that on that proceeding it would have been the duty of the court to have quashed the mmc pro tunc judgment. In that state of the record, the judgment appears to be for the right party. The judgment is the only judgment that could finally have been rendered if the court had entertained a certiorari proceeding to test the validity of the nunc .pro tunc judgment before entering judgment in this case. What we have said does not mean that the parties who may be entitled to compensation are without remedy. They can,' after due notice to respondents, bring the matter to the attention of the county court and have such allowances made to them as is authorized by statute. When these allowances are made and shown of record in the proper way, they can then be collected. The judgment in this case is for the right party and is therefore affirmed. Farrington, J., and Bradley, J., concur.