that plaintiff's asthma and rheumatism were eases, but did suffer from abscess of the recdirectly caused by the moisture thus created tum. The evidence of the doctors that was in her home. excluded did not tend to contradict plaintiff, since she freely admitted that they treated her for a wholly different complaint from that for which she sues.

Fo. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Circuit Court, Chariton Coun- and shall hold such other and further proceeds ty; Fred Lamb, Judge.

Suit for partition by Charles Monroe Tanner against Enos Marion Tanner and another. On motion for allowance of a fee to plaintiff's attorneys. From a judgment allowing the motion taxing the fees as costs and making them a lien on the land, and an order for special execution, defendants appeal. Affirmed.

ent.

TRIMBLE, J. This controversy is over the allowance of a fee to the attorneys of plaintiff in a partition suit.

of said sale subject to the order of distribution by the court, and the cause is continued to the between the parties as shall hereafter be made next term."

Thereafter the defendant Enos Marion Tanner privately purchased the interest of the plaintiff, Charles Monroe Tanner, and of his codefendant Bertha Tanner Peterson in said real estate and had the same duly conveyed

Roy Rucker, of Keytesville, for appel- to him by deed, all of which was done lants. Mark A. McGruder, of Sedalia, and without the knowledge of plaintiff's attorJno. D. Taylor, of Keytesville, for respond-neys, and immediately after such conveyance said Charles Monroe Tanner left the state, and his whereabouts is now unknown. At the May, 1917, term of the circuit court, the defendant Enos Marion Tanner, sole owner of all of said land, being about to have the partition suit abated, said attorneys McGruder and Taylor filed a motion in said cause to have an attorney's fee allowed and taxed as costs, setting up all the facts and alleging that at the time Enos Marion Tanner purchased the interests of his coheirs he was fully aware of the pendency of said partition suit, having participated therein, and was fully aware of the rights and interests of said attorneys and of the services they had rendered and of their right to have a fee allowed therefor, and that they had not been paid. Defendant Enos Marion Tanner appeared to said motion and filed an answer thereto admitting that he had purchased the interests of the plaintiff and of his codefendant and was now the sole owner of said land, but prayed the court to deny said motion. The hearing thereof was had on June 23, 1917, and the court after listening to the evidence found the facts as hereinbefore stated; found that said attorneys faithfully represented plaintiff in all things pertaining to said suit in partition and performed all duties necessary for them to perform; that no sum for attorney fees had been paid; and that Enos Marion Tanner at the time of his purchase knew that such attorney's fees had not been paid. The court further found that said attorneys were entitled to a reasonable attorney's fee for the services they had rendered in said cause to be taxed as costs therein, and fixed said fee at $400 and directed that it be taxed as costs in the case and made a lien on the land, describing it, and, ordering special execution to issue therefor. From the action of the court on said motion, defendant Enos Marion Tanner has appealed. It is agreed that the reasonable value of the farm is $12,000.

It seems that in 1914, one John Harrison Tanner died intestate, owning 160 acres of land in Chariton county, and leaving only three heirs, namely, Charles Monroe Tanner, the plaintiff herein, and the two defendants Enos Marion Tanner and Bertha Tanner Peterson. No administrator was applied for or appointed upon his estate, and in 1916 Mark A. McGruder and John D. Taylor, attorneys, were employed by the plaintiff, Charles Monroe Tanner, to bring suit to partition the lands of which said John Harrison Tanner died seised and possessed; it being agreed between plaintiff and said attorneys that they should have for their services a reasonable attorney's fee to be allowed by the court and taxed as costs in said cause. Pursuant to said agreement, said attorneys brought said partition suit in due form, and thereafter the defendant Enos Marion Tanner applied to the probate court for letters of administration on John Harrison Tanner's estate, and letters were issued thereon. Said Enos Marion Tanner then presented claims aggregating $3,300 against said estate and the same were allowed in his favor. Thereupon said two defendants set up, in the partition suit, the allowance of said claims against said estate and the lack of any personal funds out of which to pay same and prayed that said partition suit be abated for that reason. The partition suit was tried however, and at the November term, to wit, on December 5, 1916, judgment for partition was rendered; the court finding that the lands were not susceptible of partition in kind, finding also that claims had been allowed against said estate to the extent of $3,300, and that there were not sufficient personal assets to pay the debts of said estate. It was thereupon adjudged and decreed that the land be sold for cash, but that the proceeds thereof

"be held by the sheriff until the administration of the said estate shall have been completed to the extent of allowing all valid claims, and he shall then, upon the further order of this court, pay such sums to the administrator of the estate of John Harrison Tanner as shall be nec

[1] The contention of appellant is that the circuit court was without jurisdiction to order partition of the land in question because it affirmatively appeared that there were debts against the estate and there was no other property out of which the same could be paid. Waiving the question (if there is any), as to whether this appeal from the order of the court on said motion can attack

tition at the time such judgment was rendered, we proceed to a consideration of the above contention. It is based upon the decision in Tuppery v. Hertung, 46 Mo. 135. But that opinion rests upon the statute in force at that time. Shortly after that decision was rendered the statute was changed. Said statute is now section 2570, R. S. Mo. 1909, and reads as follows:

*

"that provision of the partition act, prohibiting partition of land from being finally consummated until the estate has been fully settled, or the court satisfied that there is ample property aliunde to satisfy all claims." (Italics ours.)

The ruling in Chrisman v. Divinia, supra, is approved and upheld in Barnard v. Keathley, 230 Mo. 209, loc. cit. 228, 130 S. W. 306. We are therefore of the opinion that the allowance of the attorney's fee cannot be defeated on the ground that the court, at the time the judgment of partition was entered, had no jurisdiction to render the judgment that was rendered, complying as it did with the condition provided for and required in

"Upon judgment of partition in proceedings commenced in this article, where the lands ** sought to be divided *** shall have descended to any of the parties in interest, and the court shall not be satisfied either that the estate from which the same has descended has been finally settled, and all claims against the same fully discharged, or that the personal said section 2570. property, or other real property not already partitioned, belonging to such estate, is more than sufficient to pay all claims and demands against the same, the order of distribution shall not apply to nor take effect upon any of the lands, tenements or hereditaments allotted, or the share of the proceeds of any sale adjudged to the parties whose interest shall have so descended, until such estate shall have been finally settled and all claims against the same fully discharged; and until such final settlement, the interest of all parties in such lands, tenements or hereditaments, or in the proceeds of sale in cases where sale' has been ordered, shall remain and be subject to the claims against the

same."

In Chrisman v. Divinia, 141 Mo. 122 loc.

[2] Did the court otherwise have power to allow an attorney's fee in a partition proceeding in which the attorneys had done everything required of them, and in which a final decree was prevented only by the action of the defendant in buying up the interests of all the other owners of the land, with full knowledge of the attorneys' services and rights? Section 2609, R. S. Mo. 1909, says:

"The judge of the court in which any suit under this article may be brought shall allow a reasonable fee to the attorney or attorneys bringing the suit * * * which fee * * * shall be taxed and paid as other costs," etc.

The power to tax a fee is not conditioned cit. 130, 41 S. W. 920, 922, the Supreme here upon the rendition of a final decree in Court, in passing upon the same contention, partition. Of course, if the failure to obtain

said:

"But section 7143, R. S. 1889 [now section "But section 7143, R. S. 1889 [now section 2570, R. S. 1909] clearly sanctions the partition of land before final settlement of the estate to whose demands the land may yet be subject. Such a speedy partition is obtainable only upon the conditions named in the statute, but it cannot justly be said to be forbidden, or beyond the jurisdiction of the court." (Italics ours.)

In the case at bar, the court complied with the conditions specified in the statute by providing that the proceeds be held until the administration would determine the amount needed for debts and a sufficient sum for administration purposes be turned over to the administrator. No compliance with this statutory condition was had in the case of Mills v. Mills, 141 Mo. 195, and this is what is meant when the court in that case at page 199, 42 S. W. at page 710 said: "No partition could be properly made without providing for the discharge of the debts chargeable against her estate." (Italics ours.)

a final decree arose through any fault or dereliction of the attorneys, or because it could never have been secured, then doubtless no fee would be allowable. But here the defendant voluntarily and with full knowledge of the attorneys' rights, by his own act, obviated the necessity of a final decree, or rather he, with full knowledge, made himself master of the situation where he could compel the dismissal of the suit or a modification of the decree whereby a sale would be obviated and the whole title declared vested in him subject to the payment of his ancestor's debts. It cannot be said that there may never have been anything to divide, since the land is worth $12,000 and the allowed debts only $3,300, and defendant has purchased the interest of the other heirs, which he doubtless would never have done had they owned nothing to sell. Neither can it be said that defendant has obtained no benefit from the bringing of the partition suit, since it was not until after that was done that he secured the other interests. However, the attorneys'

It is true judgment denying partition was affirmed in that case, but that was because of several reasons: (1) Because plaintiffs, right to their fee does not depend upon in their petition, had demanded partition as heirs of a person not the owner of the legal title; and (2) because, although the parties were also heirs of the person who did own the title, no request for partition on that basis had been asked, nor was any provision made, or sought to be made, whereby the debts of that person would be taken care of. Nothing more than this is meant by the remark in Eoff v. Thompkins, 66 Mo. loc. cit. 226, where the court speaks of

203 S.W.-16

whether the bringing of that suit was of benefit to defendant. It depends upon their rights under the law by reason of the services rendered under their contract and the power of the court to allow them their fee in a case where those services would unquestionably have resulted in a final decree had not the defendant, with full knowledge of their rights, and without fault on their part, put himself in a position to stop all further proceedings.

Walsh & Aylward, of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

[3] The court had jurisdiction to entertain the partition suit, whereby costs would be, and were, incurred as the case proceeded; and if any one else had, with knowledge, purchased the interest of any one of the heirs, ELLISON, P. J. Relator brought his acthe purchaser would have taken it subject to tion for damages against the Sydney Steel the burden of that heir's proportion of said Scraper Company and Samuel B. Strother, costs. And the fact that the purchaser of administrator of the estate of Tomlinson, the other two shares happens to be the re- deceased. The respondent is judge of the maining heir can make no difference. All circuit court for Jackson county, and the three interests were, at the time of defend- trial of the cause was had before him as ant's purchase, subject equally to the costs such court, with the aid of a jury. At the incurred, though not formally taxed, at that conclusion of the evidence for plaintiff the time. Hence there is no reason for confining court gave a peremptory instruction to the the costs to the one-third share derived from jury to find a verdict for the defendant plaintiff, since the defendant Enos Marion Sydney Steel Scraper Company, and such Tanner owns all the interests. He has his verdict was thereupon returned. The case own share, burdened with its proportion of was dismissed by this relator as to Strother. the costs, and obtained the other two burden- Relator as plaintiff in that case appealed to ed with theirs. So far as the record discloses, this court, and we held the peremptory inthere is nothing to show but that he, in pay- struction to be error and reversed the ing for the other shares, made due allowance judgment of the circuit court and remanded for the costs for which they were liable. But the cause for trial. The present controversy whether he did or not, he took them with that burden on them, and there is no injustice in taxing them as costs against all the land. The fee, when taxed as costs, has the same lien upon the land as, and no more than, the other partition costs have, and this is all that is effected by the orders of the court making it a "special lien" against the land and ordering "special" execution to issue therefor.

The judgment is affirmed. All concur.

STATE ex rel. AIKEN v. BUCKNER. (No. 12967.)

(Kansas City Court of Appeals. Missouri. March 18, 1918.)

has arisen over the order of time at which relator dismissed his case as to Strother; he insists that he took that action before the returned, while respondent claims that the peremptory instruction was given and verdict dismissal was after the verdict was returned. The judgment entered on the record, as well as the clerk's minutes, support relator. But the defendant Sydney Steel Scraper Company, as well as respondents, claimed that the entry of the judgment of dismissal in the record as having been rendered prior to the instruction and verdict was an error of the

clerk, and that respondent's entries in his docket show the dismissal was subsequent to the instructions and verdict. So the defendant Sydney Steel Scraper Company after

1. EVIDENCE 83(6)-PRESUMPTION-CLERK the judgment of reversal rendered in this OF COURT.

A judgment entered upon the record by clerk of a court of record is presumed to be the judgment rendered by the court, and such presumption cannot be qualified by the recollection of the judge or witness, and can only be overcome by some proper paper or record in the cause, such as the clerk's minute book or entries in the judge's docket, and mere silence of the docket or of the minutes cannot control proper affirmative recitations in the judgment

entered on the record.

2. PROHIBITION 27-EVIDENCE.

court and after the mandate from this court had been issued and had been received in the circuit court, filed a motion in the circuit court asking for an order nunc pro tunc changing or transposing the judgments, as shown in the record, so that the judgment of dismissal as to Strother would appear to have been rendered after the verdict and judgment in favor of the Sydney Steel Scrap

er Company.

On prohibition involving the issue as to [1] The judgment entered upon the record whether relator had dismissed his action against by the clerk of a court of record is presumed a party defendant before the peremptory in- to be the judgment rendered by the court, struction to find for the other defendant was given, and the verdict returned, evidence held and such presumption cannot be qualified by to show that the dismissal was before, and not the recollection of the judge or witnesses. after, the verdict.

3. PROHIBITION 5(1)-INVALID JUDICIAL
Аст.
Where a judge is about to do an act not jus-
tified by the record, and which he has no right-
ful judicial power to do, the writ of prohibition
may be invoked.

Original proceeding in prohibition by the
State, on the relation of W. H. Aiken, against
Thomas B. Buckner. Preliminary writ made
final.

It can only be overcome by some proper paper in the cause or by some record, or quasi record, such as the clerk's minute book, or entries in the judge's docket. M.. K. & E. Ry. v. Holschlag, 144 Mo. 253, 257, 45 S. W. 1101, 66 Am. St. Rep. 417; Belkin v. Rhodes, 76 Mo. 643, 652; Burns v. Sullivan, 90 Mo. App. 1, 4; Bohm Bros. v. Stivers, 75 Mo. App. 291. And mere silence of the judge's docket or of the clerk's minutes can-Numbered

not

We will apply these settled rules of law to the facts as shown by the record in the cause as it stood when it was proposed to make the nunc pro tune order. The clerk's minutes are as follows:

control proper affirmative recitations mentioned occurred last. It is not certain in the judgment 'entered on the record. Monk that a trial judge absorbed in observation v. Railroad, 166 Mo. App. 692, 707, 708, 150 of the trial makes each memorandum of fact S. W. 1083, 1087. on his docket in the order of its occurrence, and especially ought we to refuse to give the mere circumstance of one recitation of fact following another in the judge's docket force enough to establish that the facts themselves followed one another when such circumstance is met by proof of the highest character that they did not. The judgment entered by the clerk as written in the record is connected in such a way as not to be subject to this criticism of the docket. gins with a recitation of the amendment of the petition, then follows, connected by the conjunctive "and," the entry that plaintiff dismissed as to Strother. There follows the further connection by the word "wherefore" the judgment dismissing Strother. Finally, again connected by the conjunctive "and," is The face the peremptory instruction, etc. of the judgment in the record is, in effect, an affirmation that the facts then recited transpired in the order of their recital.

"76663-Akin v. Sidney Steel Scraper Co. et al. By leave of court, plaintiff amends petition by reducing the amount sued for to $7,500. Defendant Sidney Steel Scraper Company excepts. Plaintiff dismisses as to Samuel B. Strother, administrator of estate of J. C. Tomlinson, deceased. At close of plaintiff's evidence, under instructions given by the court, the jury returned the following verdict, to wit: 'We, the jury find the issues for the defendant Sidney Steel Scraper Company. H. A. Kelly, Foreman.' Judgment accordingly."

The judgment entered at large in the

record reads as follows:

"Now on this day again come the parties in this cause, and also comes the jury herein, and now plaintiff, by leave of court, amends his petition by reducing the amount sued for to seventy-five hundred dollars, to which action in permitting said defendant Sidney Steel Scraper Company excepts. And now plaintiff dismisses this cause as to defendant Samuel B. Strother, administrator of the estate of J. C. Tomlinson, deceased.

"Wherefore, it is ordered and adjudged by the court that this cause be, and the same is hereby dismissed as to defendant Samuel B. Strother, administrator of the estate of J. C. Tomlinson, deceased, and that said defendant have and recover of and from plaintiff his costs herein, and have execution therefor, and at the close of plaintiff's evidence, under the instruction given by the court, the said jury returned the following verdict, to wit: 'We, the jury, find the issues for defendant, Sidney Steel Scraper Company. H. A. Kelly, Foreman.' "Wherefore, it is ordered and adjudged by the court that plaintiff take nothing by this suit and that defendant Sidney Steel Scraper Company have and recover of and from plaintiff its costs herein and have execution therefor."

The entry in the respondent's docket as made in his handwriting is as follows:

"William H. Aikin v. Tomlinson and Sidney Steel Scraper Company. Walsh, A. & L. Conrad, S. & W. December 5, 1916. At close of case court directs a verdict for defendant Sidney Steel Scraper Company. Plaintiff dismisses as to S. B. Strother, Adm'r."

[2] We do not discover anything in the entry in the judge's docket to overcome the presumption that the judgment entered in the record was the judgment in fact rendered. The only reason given for the claim that the judge's entries show the dismissal as to Strother was subsequent to the instruction and verdict for Sydney Steel Scraper Company is that it appears as having been written last. There is no connection between the entries to show the order in which they actually occurred, save the bare fact that one follows the other. This is strong evidence that the last entry was written last, but it is not nearly so strong that the fact

We will remark here, parenthetically, that there is a discrepancy between the docket entry and the judgment which does not tend to support the claim of absolute accuracy for the docket. It is entered in the docket that the peremptory instruction was given at the "close of case," while the fact is it was given at the close of the evidence for plaintiff.

But there is another consideration disclosed on the face of the judgment and the judge's docket above set out, which we think, in any reasonable view, shows that respondent is mistaken in concluding that the dismissal as to Strother came after the instruction and the verdict. If Strother had not been dismissed and was yet in the case, why did the instruction directing a verdict refer to the Sydney Steel Scraper Company alone? Why was Strother left out of consid

eration? It is familiar law that a verdict must dispose of all parties and issues. Why then, if Strother was still in the case, did the instruction and the verdict ignore him? The wording of the instruction and the verdict in response thereto leaves but one answer, and that is that at that time Strother was no longer a party and the clerk's entry of the judgment is the judgment as it was rendered.

[3] We conclude that respondent was about to do an act not justified by the record, and which he has no rightful judicial power to do; in such case the writ of prohibition may be invoked. State ex rel. v. McQuillin, 246 Mo. 517, 532, 151 S. W. 444; State ex rel. v. Hort, 210 Mo. 512, 525, 109 S: W. 737; State ex rel. v. Kimmel, 183 S. W. 651.

The preliminary writ will be made final. The other Judges concur.