Harvin v. Blackman

The opinion of the court was delivered by Nicholas, O. J. It will be seen that while the appellee was seeking to-have the appeal dismissed on the ground that through appellant’s fault the transcript was not complete and did not show the evidence or admission on which the judgment of the District Court was rendered, he himself was attempting to have the record made up so as to show those facts by means first, of an application to the district judge after the appeal in the case was perfected to make out a statement of acts, and subsequently through a certiorari from this court to the judge, directing him to make out such a statement in order to “correct the record.” It is evident that the appellee was apprehensive, if the appeal was not dismissed in limine upon the ground that the appellant was at fault, in sending up the transcript as made, and the case should be taken up on the merits that he himself would be held to blame in not having placed the record in [432] such shape in the lower court, as would warrant and justify the appellate court, in case of an appeal, in affirming the judgment of the District Court in his favor. It is unquestionably true that if an appellee has in point of fact placed matters in the District Court in such shape as would entitle him in case of an appeal by his opponent to maintain by the record, the judgment rendered in ihis favor, an appellant will be required to place matters before the Supreme Court in the same condition, but it is no part of the duty of an appellant to come to appellee’s assistance if the latter has through laches and negligence on his part failed to make out for himself a proper record. He should have anticipated the possibility of his opponent’s appealing and taken precautions to safeguard his interests to meet that contingency. An appellant is entitled, acting in his own interests, to have a statement of facts made, if he claims the right at the time in the manner and under the circumstances fixed by the law, but an appellee cannot for his own benefit require him to do this. He himself must initiate matters and protect himself according to law. We have no reason to suppose that the record brought up is not precisely such as the clerk certified it to be. We cannot dismiss the appeal. It is hereby maintained. Maintaining the appeal forces us into an examination of the record to ascertain from it whether the judgment appealed from can be affirmed. We may say here that the application made by the appellee to the district judge after the appeal was perfected in this case, to make out a statement of facts, the refusal of the district judge to grant that application, and the bill of exceptions taken to that refusal, are matters not properly before us. This all occurred in the District Court after it had lost jurisdiction of the appeal taken in the case. That such statement cannot be called for after an appeal has been taken is well settled. The district judge cannot be required to make such a statement through a certiorari directed to him under a claim of “correcting the record,” for there was no “error” to “correct,” so far as any “statement of facts” was concerned. If appellee’s idea was that the minutes should Have been shown and did not show that evidence was introduced and what that evidence was, and that admissions were made, and what those admissions were, the remedy, if permissible, was not through an amendment and correction of the minutes and not by a statement from the district judge. Our attention is called to the fact that the district judge in the bill of exceptions admitted as a fact that pliantiff’s counsel [433] bad admitted on the trial that the notes annexed to defendant’s plea of ■estoppel were genuine, and the plea of estoppel was good. That declaration was made by the judge only contingently to meet the case of this court’s ordering him to make a statement of facts. As we have given no such order, the declaration is not ¡before us officially. Were we to take notice of it at all, it would be simply by force of a, consent and recognition by the parties themselves that that statement was true in. fact. Turning to the record, we find that the act of purchase, on which plaintiff declares was not in point of fact annexed to bis petition, though alleged to be so, and that the note and act of lease annexed to defendant’s plea were never offered in evidence, though they may have been referred to. They are in the record solely because they were attached to the plea, not because they were filed in evidence. Had they been offered in evidence they would have been filed and referred to. Had they been introduced in evidence they would not, even on defendant’s theory of estoppel, have entitled the defendant to a judgment, for neither the note nor the act of lease are identified as covering the land which the plaintiff claims in this suit. Granting everything that the defendant claims, it amounts to nothing more than this: that without either the note or the act of lease being in evidence, the plaintiff’s attorney admitted they were genuine, and admitted as a matter of law arising from that fact that defendant’s plea of estoppel was good. It may be that plaintiff’s counsel was authorized to admit the genuineness of plaintiff’s signature to the note and act of lease, and that on that admission being placed of record and the instruments themselves being admitted in evidence, the judge on the evidence might have ruled against the plaintiff, but these were not the facts. Plaintiff, by the judgment, is divested of real estate whidb, under his allegations (which defendant does not deny), is worth four thousand dollars, solely through verbal admissions and conclusions of law, of an attorney at law, without any evidence in the record back of the admission. And this admission and conclusion of law is made in the face of pleadings that whatever paper title the defendant may have, it wa¡? ■extorted from him íby force and violence, on the part of the defendant, placing him in fear of his life, which continued up to the filing of the suit. It is difficult to apply the doctrine of estoppel to this condition [434] of facts. It is very true that the courts have frequently recognized that a person who has entered into possession of property under lease-from another, will not generally be permitted during the continuance of the lease, to impugn tlhe lessor’s title, but this doctrine has numerous-exceptions. Its application should be invoked m aid of working out equity and not made to cover wrong. Estoppels are not favored in the-law, and where there is reason even to suspect that they may be utilized for purposes of oppression, the whole subject-matter from which they seek to exclude investigation should be thrown open to the light. It may be that plaintiff’s assertions are all wrong and that defendant’s claim that ¡he. is estopped may be well grounded, but we feel that justice would be better subserved in this case by dealing with the question of estoppel at the end of a trial after evidence adduced, than at the beginning of one on unexplained papers. Succession of Frances, 49-Ann. ÍY40. If á person in possession of property as owner is forced by another by violence and through fear to give him a deed for the same, and under the influence of the same violence and fear, the original legal possession of the owner is continued under a forced possession as-lessee, all enquiry into all the circumstances of the case is cut off, under the doctrine of estoppel, tlhe rights of men would be made to rest on-frail foundations .and weakness placed at a great disadvantage. Plaintiff did not -by direct and specific allegations refer to and attack the lease, which the defendant alludes to as having ¡been equally occasioned' and continued by violence, but he did allege that he had been in constant fear since the deed of sale was passed. There may have been some-special and good reason for this. Possibly the lease did not in fact cover the same property; possibly he anticipated that if defendant should set up an estoppel by reason of tlhe lease that he would do so-by way of defense in an answer instead of by way -of exception, and he could in rebuttal or replication attack the lease, when so set up, and that he could do this more advantageously than through direct attack originally. Be this as it may, we see enough in the pleadings to admonish us to proceed cautiously in this matter. If defendant has acted legally and properly in respect to this property, he has nothing to fear from investigation, and we think all the circumstances of the case should be ascertained, and that for this purpose both parties should be permitted to amend their pleadings. We reach this conclusion the [435] more readily because independently of tbis particular question, tbe judgment rendered must be reversed and the cause remanded. Granting that the plaintiff were estopped from contesting defendant’s title to ithe property by reason of his occupying towards Mm the position of a lessee, that fact would not cut Mm off from setting up and recovering judgment upon Ms alternative demand if he could make good Ms allegations. For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that this canse be reinstated on the docket of tihe District Court to be there proceeded with according to law, leave being hereby granted to both parties to amend -their pleadings. Eehearing refused.