Sweet v. Maupin

Sherwood, C. J.

i. probate court: ^IS^eaot^of allowance.

It would indeed be difficult to carefully peruse the voluminous evidence in this case without reaching the same conclusion the jury did in fEe verdict found for the plaintiff', as the original claim, now before us, shows an evident alteration in the character of the allowance endorsed *67 thereon—an alteration made with such great assiduity, both with pen and eraser, as to scarcely leave the faintest doubt that honest purpose never prompted the significant erasure.

2_, offget. paroi evidence.

II. Complaint is made that Judge Becker, the presiding justice at the time the claim was allowed, was permitted to state the character of the judgment which was rendered. Ordinarily, of. course, such evidence would be clearly inadmissible; but not so under the circumstances of this case. For his testimony, taken in connection with that of other witnesses, was not to contradict the record, but to show that fraud, which vitiates everything that it touches, had been employed to defeat the legitimate action of the court over which he presided, and, as expressed in the rough minutes of the clerk, by so changing the entry made thereon, which even defendant’s attorney, Crowe, admits was made in a certain way, as to show an absolute unconditional allowance, instead of the allowance of a mere judgment of offset, as shown originally by those minutes.

3. judgment: fraudulent alteration: paroi evidence.

III. Evidence showing such fraudulent alteration of a record, or any portion thereof, should certainly be very clear and forcible; but this has,in this case,been _ __ abundantly furnished, both verbal and written, to show the wrongful change. And should we refuse to receive it, we, by our own ruling, would only pave the way for repeated forgeries of this sort. No error is perceived in this regard, nor do we discover any error in the instructions given on the part of the plaintiff.

The third instruction told the jury that the verdict of allowance was not conclusive evidence m and of itself, that the note sued on had been adjudicated and passed upon by the county court at the time the allowance was made, and this accords with our former ruling, when this ease was here before. Objection is made to the first and second instructions, which, in effect, told the jury to find in favor of plaintiff, unless they believed, from the evidence, that *68 tlie notes sued on were passed upon and adjudicated at the time the allowance in favor of defendant was made; because these instructions farther told the jury, in the event of thus finding for plaintiff, to deduct from the aggregate amount of the notes and interest the amount of the allowance, and bring in a verdict for the residue. We do not see what prejudice these instructions could work to defendant; for plaintiff was entitled to recover, if at all, for the full amount of the notes and interest, while these instructions •diminish the recovery by the amount of the allowance. If the plaintiff had recovered the full amount of the notes and interest, it is clear that defendant would not have been able to have enforced his claim against the estate until the larger judgment of the plaintiff was first satisfied, so that the only effect of these instructions, if obeyed by the jury, and it would seem they were, was to accomplish a present adjustment between the parties.

i. practice: verdict: seveiai counts.

IV. A more serious objection is made to the verdict, which was for $1,197.16, on the ground that the finding is a general one, and nota finding on each count 0f £pe pe^^on_ For repeated decisions of this court have settled the matter that when the attention of the lower court has been called to a defect of this sort, by appropriate motion, a reversal must occur, if such motion be overruled. But on examination of the motion for new trial, in the present instance, it will be found that, although the ground referred to is distinctly set out in the assignment of errors at general term, yet that the .motion does not distinctly specify the ground now urged, the nearest approach to such specification being the fourth clause, that “the verdict of the jury is not warranted by the issues in the case, and is incorrect and informal.” Our statute expressly requires that motions shall distinctly specify the ground whereon they are based (2 Wag. Stat. 1,021 sec. 48.) The object of this is to call the attention of the lower court to the point complained of. For mere matters of exception cannot be noticed here except when “expressly decided” *69 by the lower court (Id. 106 sec. 32; State v. Rucker, 59 Mo. 17; Brady v. Connelly, 52 Mo. 19; Chapman v. White, Id. 179; Burns v. Whelan, Id. 520; Carver v. Thornhill, 53 Mo. 283.) We hardly think, in the light of these statutory provisions and decisions, the motion before us specified with sufficient distinctness the ground now relied on, that the verdict did not contain a special finding on each count. But even if the motion had been sufficiently specific in the particular mentioned, we should be very loth to reverse on that ground, under the particular circumstances of the case at bar. Eor it seems quite evident that the jury found in favor of the plaintiff on all the counts in the petition, and then, in obedience to instructions, deducted the allowance in favor of the defendant, and gave a verdict for the residue. The amount of their verdict would appear to indicate this. In addition to that, the judgment is evidently for the right party. This is the eleventh year of this litigation ; no useful purpose can be subserved by allowing it to continue longer, since the trial below was fairly conducted, and the practical result reached would doubtless be the same were the cause remanded. Taking all these matters into consideration, we do not feel at liberty to take such action as will disturb the judgment of the lower court. Eor we are expressly prohibited from reversing the judgment of any court, unless believing that error was committed “materially affecting the merits of the action” (2 Wag. Stat. 1,067 sec. 33).

L. JP. Barker for the motion.

I. A judgment of a court of competent jurisdiction cannot be attacked in a collateral proceeding for fraud, but only by a direct proceeding for that purpose. Christmas v. Bussell, 5 Wall. 290 ; Granger v. Clark, 22 Maine 128; Freeman v. Thompson, 53 Mo. 183; Atkinson v. Allen, 12 Vt.. 624; McRae v. Matoon, 13 Pick. 53; Krekeler v. Ritter, 62 N. T. 372; Anderson v. Anderson, 8 Ohio 108; Smith v. Smith, 22 Iowa 516; Smith v. Keen, 26 Me. 411. And then it must be specially pleaded. Whetstone v. Whetstone, 31 Iowa 277; Commonwealth v. Trout, 76 Pa. St. 379; Halverson v. Hutchinson, 39 Iowa 316; Fdgell v. Sigerson, 20 Mo. 494; Kerr, Fraud and Mistake, 365 et seq.; 2 Whart. Evidence, §§ 982, 984; 1 Greenleaf Evidence, §§ 51, 52, 448; 1 Ves. Ch. 287; Sibson v. Edgeworth, 2 Deg. & Sm. 73; McMurray v. Gifford, 5 Ilow. Pr. 14.

*69 Therefore, we shall reverse the judgment of reversal rendered by the general term, and affirm the judgment of the special term, in favor of the plaintiff.

All concur.

Aeeirmed.