for the plaintiffs on that appeal showed judgments for the parties and for the amounts and on the dates named in that petition, but showed that such judgments were rendered by the clerk of that court in vacation on confession. There was then no proof of the statutes of that state authorizing the rendition of judgments by the clerk in vacation on confession. But those judgments were in evidence showing the appearance of the plaintiffs and defendants before the clerk in vacation, and that the defendant appeared by attorney who was duly authorized by warrant of attorney duly executed by defendant, all of which is shown on page 475 et seq. of 267 Mo., 184 S. W. 108, on the former appeal.

fession in vacation. That the respective judg ments obtained by the original plaintiffs in this original plaintiffs or their successors duly subcause, and which are now either owned by the stituted herein, were all judgments by confession duly entered by the clerk of the circuit court of Randolph county, Ill., in vacation, pursuant to the statutory power above set forth, as construed by the Supreme Court of Illinois, and the practice observed in following the above statute.'

Defendants moved to strike out the fourth amended petition, on the ground that the judgments by confession before the clerk in vacation set out in that petition were different from the judgments shown in the prior petitions, and that, for that reason, the last petition stated a different cause of action from the one previously alleged. The

The order remanding the cause on the motion was overruled. former appeal is as follows:

"It is therefore ordered that the foregoing opinion be modified so that, instead of remanding the cause generally for a new trial, the cause be remanded with directions that the new trial shall be confined to the single issue as to whether or not there was statutory authority in Illinois authorizing the clerk of said circuit court to enter or render the respective judg ments upon which said respondents base their respective claims. Either party may, if they so desire, so amend the pleadings as to more clearly draw the issue upon this question. After a determination of this single issue, the circuit court will thereupon enter its judgment or decree, in accordance with the facts heretofore found and the facts then found upon this issue."

Prior to the last trial, the plaintiffs filed a fourth amended petition, which was the same as the third except in the following particulars: (1) It alleged the assignment of two of the judgments against said corporation, and the substitution herein of such assignees as parties plaintiff. (2) The death of three other holders of such judgments and the substitution of their administrators as parties plaintiff herein. (3) It alleged that the judgments were rendered by the clerk in vacation on confession. (4) It alleged that, under section 12 of article 6 of the Constitution of Illinois, the circuit courts are courts of record and of general jurisdiction. It also alleged the provisions of the statutes of that state making the clerks of such courts the keepers of their records and seals. It contained this allegation:

"Plaintiffs further state: That chapter 110 of the Laws of Illinois, in force at the time the judgments in the above-entitled cause were rendered, was an act in relation to practice and procedure in courts of record, and that paragraph 66 of said chapter provided: Any person for a debt bona fide due may confess judgment by himself, or attorney duly authorized, either in term time or vacation, without process. Judgments entered in vacation shall have like force and effect, and from the date thereof become liens in like manner and extent as judgments entered in term.' That under the decisions of the Supreme Court of Illinois in construing said section 66, and particularly as construed in the case of Conkling v. Ridgely, 112 Ill. 36, 1 N. E. 261, 54 Am. Rep. 204, and in accordance with the practice observed in the state of Illinois, the clerk of the circuit court alone has authority to enter judgments by con

Defendants then filed an answer which contained:

(1) A general denial.

(2) It alleged that the cause of action stated in the last petition was different from that stated in the prior petition in the respects above mentioned, and pleaded the tenyear statute of limitations of this state as to judgments.

(3) It alleged that, at the date of said judgments and the executions thereon, the property of the corporation was in the hands of a receiver duly appointed by the federal Circuit Court, and that plaintiff did not exhaust the assets of said corporation before proceeding against these defendants. (4) It contained this:

"For a further answer to the fourth amended petition herein, defendants state that the clerk of the circuit court of Randolph county, Ill., was without jurisdiction to render the judgments sued on, for the said judgments were confessed by one Don E. Detrich as attorney for defendant without authority so to do."

(5) It alleged that, under the law of Illinois, suit may be brought against an insolvent corporation and all its shareholders, in which each shareholder may be required to pay his pro rata share of the debts to the extent of the unpaid portion of his stock after exhausting the assets of the corporation; and it alleged that no such suit has ever been brought.

On motion of plaintiffs, the court struck out all of that answer except the general denial.

On the trial the plaintiffs proved the assignment of two of said judgments to the substituted plaintiffs herein, and the deaths of three of the judgment creditors and the appointment of their administrators, who are made parties herein, all as alleged in the fourth amended petition. Plaintiffs also proved the provisions of the Constitution and statutes of Illinois as alleged.

Defendant objected to any evidence on the part of the plaintiffs because the judgments pleaded in the fourth amended petition were different from those alleged in the previous petitions in the particulars heretofore mentioned, and because the last-amended peti

tion did not state a cause of action, and process of the law. It is sufficient to say because the defendants would be deprived of that the Constitution nowhere guarantees the right to due process of law guaranteed to any one the right to be heard again on to them by the fifth amendment, and by a question after that question has once been section 1 of the fourteenth amendment to finally heard and adjudicated under due the Constitution of the United States. The process of law. The question of variance objection was overruled. and its effects on this case were disposed of finally under due process of law on the former appeal, and appellants have no constitutional right to reopen that question.

Jeffries & Corum, of St. Louis, for appellants. Eliot, Chaplin, Blayney & Bedal, of St. Louis, for respondents.

ROY, C. (after stating the facts as above). [1, 2] I. Defendants contend that the plaintiffs in their fourth amended petition stand on judgments rendered before the clerk in vacation, and that such judgments are different ones from those alleged in prior petitions to have been recovered in "the circuit court of Randolph county, Ill."

In Keith v. Kellogg, 97 Ill. 147, it was held that a judgment by confession under power of attorney before the clerk of the

circuit court in vacation under the statute was a judgment of the court the same as if entered in term time. Under that decision, the plaintiffs herein were not guilty of any great variance when they alleged in their prior petition that the judgments were recovered in the circuit court. In the former opinion this court said:

"Appellants contend that the judgments introduced in evidence were insufficient in law to support the finding for plaintiffs. In this regard, it is contended that, in the petition, it is alleged that the plaintiffs' respective claims are based upon judgments 'in the circuit court of Randolph county in the state of Illinois against said Chester Light, Water & Ice Company,' etc., whereas the proof offered shows only judgments entered by the clerk of said court in vacation, and that, since no proof of statutory provisions of Illinois authorizing a procedure of this character was offered in evidence, no presumption as to their validity can be allowed.'

If the question of variance was there raised, it was there finally disposed of by the court against the appellants.

[4] III. Appellants say that they have been deprived of the right to show that the attorney Detrich, who appeared for defendant corporation in the confession of said judgments, had no authority to do so. In answer, we call attention to the fact that the report on the former appeal does not show that defendant there controverted the authority of Detrich to represent the corporation. They have had their day in court on that question: and, as we have seen, the order remanding this cause excludes that question from further hearing.

The judgment is affirmed.
WHITE, C., concurs.

PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All the Judges concur.

A deed based on a tax judgment against a person serving a sentence for less than life does not divest his title notwithstanding his civil

ing access to the courts for every purpose other than to question the sentence, in view of Rev. tion of the law, and of sections 2897, 2901-2904, St. 1909, § 2892, placing him under the protecproviding therefor.

Under the order remanding this cause, the parties had no rights, so far as the mer-rights are suspended; such "suspension" excludits of the case were concerned, to do more than to make the necessary pleadings and proof on the question as to the existence of a statute or statutes in that state authorizing the clerk in vacation to enter such judg-3. ment. This court at times exercises its unquestioned right, on remanding a cause, to limit the new trial to a determination of certain issues not determined on the first appeal. McLure v. Bank of Commerce, 252 Mo. 510, 160 S. W. 1005; Butler County v. Boatmen's Bank, 165 Mo. 456, 65 S. W. 716. [3] II. Appellants insist that to give the mandate of this court such construction as to deprive defendants of the full right of defense as against the judgments recovered before the clerk in vacation is to deprive them of their constitutional right to due

EMINENT DOMAIN 243(2)-JUDGMENT— RES JUDICATA-TITLE TO LAND. demnation proceedings and adverse claimants of Where a railroad company commenced conthe land made claim to condemnation money which was never paid into court or to the true owner, the court had no jurisdiction to determine the title to the land as between the claimants so as to make its adjudication binding in a subsequent suit by one of the claimants to quiet title. Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Suit by Joseph Murphy and others against William N. Barron. From a decree for defendant, plaintiffs appeal. Reversed and remanded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
205 S.W.-4

The second count is in the ordinary form under which the land was, on October 5th, in ejectment.

tenced to a term of two years in the state | tence, and asks, in addition to the usual repenitentiary. He was not at that time incarcerated in the penitentiary under this sentence, but was held to answer another [1] The petition seems to have been framed charge of felony pending in the same court, in this form to take advantage of a favorin which he pleaded guilty on February 13, able opinion of the court on either the legal 1903, and received a like sentence. He was or equitable theory of the right asserted. then sent to the penitentiary upon both sen- The defendant's title might be found vulnertences, and there remained confined until able to attack in equity or void in law. They June, 1905, when he was discharged. On are entitled, under the section cited, to the June 26, 1902, the plaintiff, joined by his same broad relief in either case. If the wife, conveyed the land in suit to Gus Baur- plaintiffs are still seised of the legal title ton, who, with his wife, executed a deed of notwithstanding the sheriff's sale, they may trust conveying the same land on the same not only have possession, but also the removday to Joseph Murphy, and on January 14, ❘ al of that cloud. McLaughlin v. McLaughlin, 1904, conveyed the same land by warranty | 228 Mo. loc. cit. 655, 129 S. W. 21, 137 Am. deed to both these plaintiffs. St. Rep. 680.

In the McLaughlin Case, the wife had secured a decree of divorce from her husband on the ground that he had been convicted of murder and sentenced to a term of ten years in the penitentiary. The summons in the divorce case had been served on the convict in the Missouri penitentiary. The court granted the divorce with the care and custody of the children, and by its judgment vested the title of the homestead in the wife. No question was made in this court as to the jurisdiction of the circuit court over the defendant for the purpose of granting the divorce; but it was contended by the defendant that the property of the convict was under the protection of the state, and that the title to the land could only be affected through the intervention of a trustee appointed as provided in the statutes to which we have referred. Assuming, as the parties assumed, that the convict was properly before the trial court for the purpose of the divorce, this court unqualifiedly sustained the plaintiff's contention that the judgment before it was void as to the disposition of the land. In this it only followed the plain provisions of the statute to which we have already referred.

viding a method consistent with his full pun-, of this character was thoroughly considered ishment, by which his estate may be preserv- both upon principle and authority. ed during its accomplishment. In the same article which pronounces him civilly dead it is provided (section 2892) that he "is and shall be under the protection of the law." This is the keynote of this statute. It is provided also, and evidently for the purpose of extending this protection, that upon the application of any of his relations or any relative of his wife or any creditor (section 2896) the proper circuit court may appoint a fit person to be trustee of his estate (section 2897), who may, after giving bond, prosecute and defend all actions commenced by or against the convict (section 2901), and that the circuit court appointing him "may, at any time, order the sale, lease or mortgage of real estate, whenever the same shall be necessary for the payment of debts, or the support and maintenance of the family or the education of the children of such convict" (section 2902), and shall settle all matters between him and his creditors (section 2903), and “may, also, under the direction of the court, redeem all mortgages and conditional contracts, and all pledges of personal property, and satisfy judgments and decrees which may be an incumbrance on any property ordered to be sold, or he may sell such property, subject to such mortgage, pledges or incumbrances, as the court may direct" (section 2904).

These are some of the provisions for the protection of a class which has been disabled, in the administration of the laws, from protecting themselves and their dependents. They embody a remedial system so just and reasonable as to recommend them to the consideration of the court both in their interpretation and administration. The right of the convict to protect himself by contract, to appear in court, or to exercise any other civil right, has been extinguished (William v. Shackleford, 97 Mo. 322, 11 S. W. 222), and in all these enactments the state has assumed his protection. This case illustrates the theory upon which it has acted. The state was his creditor to the extent of $8. The officer charged with its collection, instead of pursuing the course so directed, waited until the convict had lost his right and power to defend himself in court, and then took this judgment and enforced it by the sacrifice of his 40 acres of land for that amount, and the attorney representing the state in the proceeding became the owner through his own sale. The questions upon which the validity of his title stands are not new to this court. They were before it in William v. Shackleford, supra, in which it was held that a mortgage executed by the convict while undergoing his sentence was void. The effect of the same statute was again before us in the late case of McLaughlin v. McLaughlin, 228 Mo. 635, 129 S. W. 21, 137 Am. St. Rep. 680, in which the validity of a judgment

Having arrived at the conclusion that the legal title to the land was unaffected by the sheriff's sale, it follows that it is vested in the plaintiffs. The fact that the defendant failed to demur for or otherwise plead a misjoinder of parties makes it unnecessary to further consider the status of the plaintiff's wife. They and those representing them continued in possession, either by themselves or their tenants, up to the spring of 1914. There being no evidence of any adverse possession until that time, the pleas which refer to the statute of limitations need not be further considered. Nor does the voluntary payment of taxes by the defendant while plaintiffs and their tenants were in possession have any reference to the questions involving the legal title.

[3] III. The controlling question in this case arises upon the effect of the "interplea" for the proceeds arising from the condemnation of the right of way of the Butler County Railroad Company. There was no money paid into court in that case. The appellant testified that it was paid directly to him. Both appellants and respondent were codefendants in that case, and each presented a claim for the amount awarded by the commissioners when it should be paid. Each claimed title to the entire premises which was the subject of the award. The court after hearing the controversy determined, and so stated upon its record, that Barron was the owner and entitled to the compensation, and the railroad company paid it to him. There is nothing in the record, so far as we can find, showing the date of the filing