236 Mo. 416 | Mo. | 1911
This suit was instituted in the circuit court of Henry county to partition certain lands in that county, described as follows: “Thirty-six acres part east half lot two, northwest quarter; seven acres part southwest fourth of the northwest quarter; twenty-seven acres part northwest fourth of the north-we'st quarter all in section three, township forty-one, range twenty-six. One hundred and sixty acres southeast quarter section seven; eighty, acres west half of the southwest quarter of section eight; forty acres the southwest quarter of the northwest quarter of section sixteen; all in township forty-two, range twenty-six.”
The petition was an ordinary one for statutory partition, in which it was stated in substance that Rebecca J. Dorman died intestate in said county on the 17th day of April, 1889, seized of said lands and leaving as her only heirs at law her daughters, Lula E. Davis, Virginia Dorman Golden, Mollie B. McNeel,
The prayer was for partition in kind and general relief.
This petition has been the subject of much discussion. The transcript made by the clerk of the circuit court of Henry county on change of venue to Cass county purported to contain a copy of it in which the two hundred and eighty acres of land in sections seven, eight and sixteen, in township forty-two were described as in range twenty-six. The original petition was stated in the transcript to have been lost. The original petition was in court and offered in evidence after the entry of the interlocutory decree of partition and described, the -land as being in range twenty-seven, which is the description incorporated in the abstract of record of the plaintiffs in error.
No process was issued or service had in this case until July 8, 1902, when the defendant Allen Dorman filed in the Henry Circuit Court a petition of his own against all the other parties in the first mentioned case for the partition of the same land, after which service was had in both cases and, at the January term, 1903, of the Henry Circuit Court, the case in which Allen Dorman was plaintiff was by order of the court, without objection from either party, consolidated with the original case brought by Mrs. Blanchard under the number of the latter, which was 128 on the docket, and in the same order it was provided “that plaintiff’s
An amended petition was filed by Mrs. Blanchard in the Henry Circuit Court on May 13, 1903, in which the tract of land first described in the original petition was described as “tract No. 2, known as the old Wash Hancock homestead in Clinton Township, Henry County, Missouri, . . . containing seventy-one acres, being the land conveyed by George W. Hancock to Rebecca J. Dorman by deed dated November 27, 1880, recorded on page 566 of deed book 30 of the deed book records of Henry county, Missouri.”This description mentions neither section, township nor range. The other tract is described as “tract No. 1,'the Dorman farm in Honey Creek township, Henry county, Missouri, described as the southeast quarter of section No. seven (7), and the west half of the southwest quarter of section No. eight (8), and the southwest fourth of the northwest quarter of section No. sixteen (16), all in township No. forty-two (42), of range No. twenty-seven (27) containing in all 280 acres, more or less.” This petition further stated in substance that from the death of Mrs. Dorman each of her heirs was the owner of an undivided one-seventh interest of the lands described, and recognized the interest of the others,- until about the first day of March, 1900, when Mrs. Davis sold her said interest to the defendants George W. Dorman, Sterling P. Dorman, Mollie B. McNeel and John B. Dorman and Mrs. Golden for twelve hundred dollars ($1200), pursuant to which sale Mrs. Davis and her husband, Charles W. Davis, conveyed said interest to the parties named.
It was further stated that the defendants Sterling P. Dorman, John B. Dorman, Allen Dorman and George W. Dorman had been in possession of said lands during the years since and including 1900, and collected rents of which they claimed to have applied a portion to the payment of the amount promised to
The prayer was for an accounting by the Dormans with respect to the rents and profits, that the amount due Mrs. Davis be determined, and that the land be sold and the proceeds distributed among the parties according to their respective rights and interests, and for general relief.
Lula E. Davis and her husband, Charles W. Davis, were made parties to this petition and were duly brought in by summons.
On September 12, 1902, all of the then defendants filed separate answers to the original petition. All except that of George W. Dorman were identical, admitting the title of Rebecca J. Dorman at the time of her death, in all the lands described in the petition, except the seventy acres in township forty-one and stating that Mrs. Golden at the time of her death had received advancements from the estate of her mother to the amount of $1850.25, which was more than her entire interest in the estate. They also stated the sale by Lula E. Davis of her interest in the estate, to Mrs. Golden, John B. Dorman, Sterling P. Dorman, George W. Dorman and Mollie B. McNeel, who executed their two joint and several promissory notes to her in payment of the purchase price of twelve hundred dollars, one of said notes being for the sum of eight hundred dollars, bearing interest at 7 per cent, and one for four hundred dollars, bearing interest at
The answer of, George W. Dorman was identical, except that in addition to the statements contained in the other answer he asserted and claimed the absolute ownership of the seventy or seventy-one acres in township forty-one.
On July 31, 1903, the defendants filed in the Henry Circuit Court separate answers to the amended petition which were practically identical with those filed to the original petition, except that George W. Dorman pleaded his title to the seventy-one acres called the Wash Hancock homestead by warranty deed from Rebecca J. Dorman and her husband Mathew Dorman.
In this answer the Dorman farm of two hundred and eighty acres was described as being range twenty-six, which seems to be the first time that the proper description of this tract had been used in the case. The pleading being in this condition the cause was called for hearing in the Henry County Circuit Court on November 25, 1904, when Judge Graves of that court announced that he was disqualified to try it, and “by consent of all parties concerned,” a change of venue was awarded to the circuit court for Cass county in the 17th Judicial Circuit, and thereupon a transcript was made by the clerk of the Henry County Circuit Court and on March 21, 1905, was filed in the circuit court for Cass county.
During the May term, 1905, of the Cass Circuit Court the defendants filed their motion to strike out the first count of the second amended petition which referred to the Dorman farm, on the ground that it contained and set up an entirely new and different cause of action from that stated in the original petition, substituting a new cause of action therefor, in that while the land sought to be partitioned in the original petition was described as being in range twenty-six, that described in the first count of the second petition was described as being in range twenty-seven.
Thereupon the plaintiff filed a third amended petition correctly describing the Dorman farm as being-in range twenty-six, and charging that defendant George W. Dorman held the legal title of the "Wash Hancock farm in trust solely for the use and benefit of the children of Rebecca J. Dorman, in fee.
The defendants at the same term moved to strike out the first count of the third amended petition, relating to the two hundred and eighty acres known as the Dorman farm, on the ground that it was a substantial departure from the original cause of action, and from the cause of action which had been theretofore stated in the several amended petitions, because
During the May term of the Cass Circuit Court and on July 11, 1906, the defendants filed their answers to the remaining count of the third amended petition, which were substantially like the ones already filed, admitting that Rebecca J. Dorman was at the time of her death seized in fee simple of the lands, and also setting out in connection with all allegations as to advancements to Virginia Dorman Golden the following contract:
“Clinton, Missouri.
“This Indenture made this day, January 14, A. D. 1882, with willing consideration by and between V. D. Golden, Allen Dorman and G. W. Dorman. That all motleys received by V. D. Golden from the R.- J. Dorman estate, is to be kept by her and held in readiness for buying additional 40 acres. It to be her share. She is to have, as part of her share (and free from her husband’s use) the 40 acres of land in Bear Creek township, already purchased, which cost $650, and which was paid for with the money from the two car loads of cattle, thirty-two (32) head, that brought*430 $23 each, the property of R. J. Dorman, the $39 received last year is to be included, but money from chickens, turkeys, éggs and butter is not to be included, as they are to be her share of profits from the R. J. Dorman estate until the 40 acres are bought.
“V. D. Golden, (Seal)
“Allen Dorman, (Seal)
“G. W. Dorman.. (Seal)”
These answers contained an itemized statement of alleged advances, amounting to two thousand four hundred fifty dollars and twenty- cents.
The plaintiff replied generally’ and went .to trial on the same day and, after hearing the evidence, the court entered an interlocutory decree, stating an accounting between the several parties of the matters contained in the pleadings and proceedings as follows:
“It is therefore considered, ordered and decreed by the court that the defendant Lula E. Davis have and recover of the plaintiff Mollie Belle Blanchard and from the defendants George W. Dorman, Sterling P. Dorman, John B. Dorman and Mollie B. Mc-Neel, the aggregate sum of six hundred fifty and 45-100 dollars, being the sum of one hundred thirty and 9-100 dollars for each of said parties and that the same be and is hereby declared to be a vendor’s lien upon the imdivided one'-seventh interest in said real estate so conveyed by the said Lula E. Davis as above found and decreed, and that in default of pay-' ment by the said Mollie Belle Blanchard, Sterling P. Dorman, John B. Dorman, George W. Dorman and Mollie B. McNeel, or either of them, of their respective pro rata part of said unpaid purchase price, the tract so assigned to such party or parties as shall fail to pay shall be sold to pay- the same and that special execution issue therefor to enforce said vendor’s lien.
“It is futher considered, ordered and decreed by*431 the court that defendant John B. Dorman account for and pay over to the other parties to this cause in accordance to the foregoing findings, the respective sums so found to he due from him to said parties respectively on said accounting and that the defendant George W. Dorman, Mollie B. McNeel and the plaintiff Mollie Belle Blanchard pay to the defendant Sterling P. Dorman the sum of fifty-eight and 61-100 dollars, so found to he due from them respectively and that said sums are each hereby declared and decreed to he a lien upon the lands assigned to said respective parties in partition, and that said Sterling P. Dorman pay to said Allen Dorman said sum of fifty-nine and 40-100 dollars.”
It also appointed commissioners to make the partition and report at the next term.
No bill of exceptions was filed at this term- nor was any leave taken for that purpose. '
The commissioners at the next term, and on the first day of December, 1906, made their report, with which they returned a paper signed by all the defendants, in which they requested that in case partition should he finally granted their interest in said lands should he set apart to them jointly, and after the formal parts the report proceeded as follows:
“We assign and set apart unto the plaintiff Mollie Belle Blanchard, as her share in the real estate as described in the-decree of partition, the following proportion thereof, to-wit: “The southwest fourth of the northwest quarter of section number sixteen in township forty-two, range twenty-six, Henry County, Mo., to have and to hold the same in fee simple. And said forty acre tract being less in value then the share of said Mollie Belle Blanchard in all said real estate under said decree and all the parties to this suit now agreeing that the difference in value shall he paid in money in . the sum of two hundred eighty dollars instead of setting apart more land out of the residue*432 of said lands to plaintiff Mollie Belle Blanchard, as such setting apart would damage the residue of the tract, and we report that the defendants, save Lula E. Davis and Charles W. Davis, pay to plaintiff said sum of two hundred eighty dollars in .lieu of such additional land in pursuance of such agreement and request of all parties.
“And we assign and set apart unto the defendants Allen Dorman, Sterling P. Dorman, John B. Dorman, Mollie B. McNeel and George W. Dorman, the following proportion of said real estate described in said decree of partition, to-wit: 1 ‘ The southeast quarter of section seven and the west half of the southwest quarter of section eight, all in township No. forty-two, of range No. twenty-six, of Henry county, Missouri, in fee simple, to have and to hold in fee' simple according to the interests as fixed by said decree in partition, subject, however, to the payment by said defendants to plaintiff of said sum of two hundred eighty dollars as the agreed excess in value of the tract assigned and set apart to defendants over the value of ‘the tract assigned to plaintiff as agreed upon as above set forth.
“We further report that we value the entire tract of land described in the decree in partition, at the value of eleven thousand two hundred dollars, and that we were engaged one day in making partition of said real estate.”
After this report was received the defendants again raised the question of departure from the original cause of action by motion to dismiss the decree, accompanied by the original petition which had been found and described the land as being in range twenty-seven, which' motion was stricken out on motion of plaintiff; and no exceptions having been filed to the report of the commissioners the court proceeded, at the same term and'on December 10th, to enter its final judgment, approving the report and rendering
The court also, in its final judgment, after hearing evidence, allowed and taxed, in favor of Peyton A. Parks, one thousand dollars for his fee as attorney in the cáse, made that amount a lien on the partitioned land, and ordered execution therefor. In this inquiry, on December 10, 1906, Mr. Parks was sworn as a witness in his own behalf, and testified that in 'his judgment the fee ought to be a thousand dollars, adding: “If it had not been contested I would have said some-wheres in the neighborhood of half that amount. Our custom and our practice would probably have been about half that amount.” The defendants, although' present by counsel when this hearing was called, did not take part in it, and made no objection to the allowance. The. judgment stated that they announced in open court that they did not desire to contest it.
On December 12, 1906, the defendants filed their motion in arrest of judgment challenging the jurisdiction of the court in the .case, and also in the allowance of the attorney’s fee; and on the same day they filed their motion for a new trial.' It is not necessary, under the view we take of the whole ease, to set out either of these motions, which were continued to the January term, 1907.
At the January term the defendants moved to correct the entry of the judgment at the September term allowing the attorney fee, by striking out the statement that they announced in open court that they did not desire to contest it, and to retax the fee. This seems to have been overruled, but is not incorporated
The only identification of, or call for, either of these motions in the bill of exceptions, which seems to be set out in full in the abstract of the record, is the statement that the motions in arrest and for a new trial were offered in evidence on a hearing of the motion to correct the entry of the judgment, that their introduction, was objected to and the objection sustained. Then follows the statement: “For such motion for a new trial and in arrest of judgment, see Ab. of Rec., p. 75 and 76.” And at the end of the bill of exceptions is the following: £ £ The court overruled the motion for a new trial. Defendants excepted. The court overruled' motion in arrest of judgment. Defendants excepted.”
* Leave was taken at the January term to file bill of exceptions, which was extended to August 15,1.907, on which date it was duly filed.
I. In entering upon the consideration of this case we are met by respondent at the front gate, with the assertion that there is nothing from which we are ~at liberty to ascertain that it was ever.brought to this court. Although our records show that the writ of error was duly granted and issued, that notice of its issue was given to the respondent in ample time, and that it has been returned here by the clerk in all respects as provided by its terms and by section 853, Revised Statutes 1899, the respondent claims that because these facts are not set up in the abstract of the record filed in accordance with the terms of section 813, Revised Statutes 1899, and the rules of this court made iu pursuance thereof, we cannot take notice of them so as to assume that we have the case before us.
This proposition, if seriously made, and we must
It is plain from the foregoing provision that the-“abstract” referred to is an abridgment, for the use of this court, of the record of the trial court, to which final recourse must be had for its correction; but even wére this not the case our rule only requires that so much of the record be set forth in the abstract as is necessaiy to a full and complete understanding of all the questions presented to this court for decision. If a question is suggested by the respondent or defendant in error upon a matter not so presented, the statute as well as the rule imposes upon him the burden of making it known to the court by bringing to its attention the true condition of the record, which in this case would have disclosed not only that the notice-had been given, but that it was regular and sufficient in every respect.
II. Another preliminary question suggested by. the' record is whether or not the several matters of exception assigned as error have been properly sáved
This case was tried and the interlocutory decree for partition was rendered at the May term, 1900, of the Cass County Circuit Court, and commissioners were appointed at that term to divide the property, but no bill of exceptions was then filed, nor was any leave taken, or stipulation or agreement made or filed for the extension of the time for filing it beyond the term, nor was any motion for a new trial filed at that term. Under these circumstances all exceptions taken during that term were abandoned. [Simpson v. Scroggins, 182 Mo. 560; Reineman v. Larkin, 222 Mo. 156, 165; St. Louis v. Lawton, 189 Mo. 474, 481; State v. Larew, 191 Mo. 192, 196, and cases cited.]
Simpson v. Scroggins, supra, was, like the case we are now considering, a suit in partition, and upon this point the court said: “All the evidence in this cause was introduced at the August term, 1901, of the Polk County Circuit Court, including the deed and will, and it áppears from the record before us that such evidence was not preserved by bill of exceptions, with objections and exceptions thereto duly filed at such August term, but an effort .was made to do so at the subsequent November term. This cannot be done, and it is unnecessary to cite authorities on that proposition
Reineman v. Larkin, supra, was a proceeding for the assignment of dower, in which' the trial was had principally upon the issue as to whether or.not the plaintiff was the widow of the person who died seized in fee of the lands involved. The issues were found in her favor and she was adjudged entitled to dower, and commissioners were appointed who reported at the next term. The report was approved at that term and final judgment entered thereon. A motion for a new trial was filed and overruled, and a bill of exceptions filed, including such as were taken at the trial of the issue involved in the interlocutory decree, and the -defendants appealed. In considering this same question Judge Lamm, who wrote the opinion of the court in this division, said: “They were entitled to appeal from the final judgment, but such appeal does not bring up the evidence at the trial resulting in the interlocutory judgment at a former term and the exceptions saved to the admission of such evidence, unless both such evidence and exceptions were preserved by a timely term bill of exceptions.” In St. Louis v. Lawton, supra, a proceeding to open a city street in which the appeal was taken after final judgment of condemnation upon the report of commissioners, the same question arose in this court, and Judge Valliant, in the opinion of the court, said: “The bill of exceptions taken during the June term, 1901, undertakes to go back to the April term, 1900, and brings into it the order made at that term, and says ‘to which action of the court this exceptor and defendant, the St. Louis Fair Association, then and there duly excepted.’ But when the April term, 1900, closed and no bill of exceptions was filed then, or within an extension of time then granted, its book was sealed and the party cannot incorporate into a bill of exceptions covering the pro
There is an apparent relaxation of this rule in those cases where a motion for a new trial is filed at the same term at which the exception is taken and continued until another term (Riddlesbarger v. McDaniel, 38 Mo. 138; Givens v. Van Studdiford, 86 Mo. 149; Young v. Downey, 150 Mo. 317), and this applies as well to a motion to set aside an involuntary nonsuit. These cases, however, are not exceptions, but serve rather to illustrate the principle on which the rule is founded. It applies to those cases only in which, by the filing of the motion at the same term the decision of the very matter is suspended for further consideration, while still in the breast of the court for preservation in the manner provided by law. It does not revive a right which has already lapsed.
It thus appears that no matter of exception taken at any time before the first day of the September term, 1906, of the Cass Circuit Court has been preserved for our consideration.
At that term the final judgment approving the report of the commissioners was rendered, $1000 was allowed to Peyton A. Parks, one of the attorneys for the plaintiff, as his attorney fee in the case, and motions for a new trial and in arrest of judgment were filed and continued until the next or January term, 1907, when said motions were overruled, and the defendants were given until the May term, 1907, in which to file their bill of exceptions. At the said May term an extension of time was granted until the 15th day of August, 1907, at which time the bill, which appears to be set out in full in the abstract of record for plaintiffs in error, was filed. It contains no copy of either of these motions, both of which are, however, set out in full in another portion of the abstract, and makes no allusion to either of them excepting the bare fact that they were overruled, nor is there anything con
The statute in force at that time (Laws 1903, p. 105), and ever since, provided that “it shall not be necessary, for the review of the action of any lowep court on appeal or writ of error that any pleading, motion, instruction or record entry in the case, . . shall be copied or set forth in the bill of exceptions filed in the lower court: Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court.” So far as this section refers to the matter involved in this case it was enacted in 1885 (Laws 1885, p. 219). Theretofore it had been necessary that the party saving the exceptions should copy such papers in full into the bill before it was signed by the judge. The change was made to facilitate the work of the parties and counsel in preparing their case for review. It has since that time been frequently before this court for construction, and has been uniformly held to mean exactly what it says, that these matters of exception must be saved in the bill either by copying them in full or directing the clerk to do so, and there seems to be no reason for attempting to modify so plain a proposition, and one with which the bar has had so many opportunities to become familiar. [State v. Griffin, 98 Mo. 672; State v. Handley, 144 Mo. 118; State v. Revely, 145 Mo. 660; State v. Wray, 124 Mo. 542; State ex rel. v. Leichtman, 146 Mo. App. 295; State v. Ruck, 194 Mo. 416, 428; Hendricks v. Galloway, 211 Mo. 536, 556; Reed v. Colp, 213 Mo. 577, 583; Betzler v. James, 227 Mo. 375, 387.]
The record being in the condition indicated, our examination must be confined to the record proper, and such matters of exception, if any, as have occurred at or subsequent to the September term, 1906, of the
III. Tbe plaintiff in error contends that the third amended petition filed in the Cass Circuit Court, was such a departure from the original cause of action as left that court without jurisdiction. If this be true, then, of course, the error is apparent in the record proper.
At the threshold of this inquiry we are met with a difference between the parties as to the state of the record, which in this case includes the original petition by which the third amended petition must be judged. The transcript upon which the case was transferred from the Henry Circuit Court to the Cass Circuit Court, while stating that the original petition could not be found, contained what purported to be a copy of it, which' was framed upon the statute, and prayed the partition of both the farms described in the third amended petition, on which the case was tried. The Dorman farm was correctly described in this copy as being in section 26.
The original petition was found in the office of the clerk of the Henry Circuit Court after the entry of the interlocutory decree at the May term, 1906. Instead of proceeding to have the transcript corrected by the Henry Circuit Court, the defendants produced the petition in the Cass Circuit Court and asked that it might be corrected there, which was properly refused. The defendants, however, insist that they shall have the benefit of what seems to be admitted by the parties to be the truth; so that in this connection we will, without deciding the legal propriety of that course, assume that the record shows that the original petition misdescribed the Dorman farm by stating that it was in range 27. This description was continued in the first amended petition, which was filed in the Henry County Circuit Court, but in the answer to that
It was in this condition of the pleading that the change of venue was taken, with the consent of all the parties entered upon the record, and the defendants claim that when the plaintiff afterwards, in the Cass Circuit Court, availed herself of the hint that they had given her with reference to the true description of that particular tract of land, and filed an amended petition accordingly, it ousted the jurisdiction of the last named court, so that its decree with reference thereto was void. "While they do not dispute the plenary power of the Legislature to confer upon the circuit court of Cass county' jurisdiction to hear and determine cases involving the title to lands in Henry county, they do intimate that no such power has been given by the provision of our code with reference to change of venue, unless in cases where the matters relating to the same land have been put in issue by definite pleading in the county in which it is instituted. In other words it is claimed That when a change of venue is taken the wings of the court are clipped, so that it is thereafter confined in its judicial flight to the boundaries of the particular land described in the petition transferred to it, even in cases in which the court where the suit was instituted would be at liberty to transgress those boundaries by amendment. This is a mistake. The statute under which the change is taken expressly provides that the cause shall be docketed in the court to which it is certified and “proceeded in and determined as if it had originated therein.” [E. S. 1899, sec. 826.] It also provides (Id., sec. 824) “that after such change of venue, any pleading found insufficient upon demurrer or otherwise may be amended as in other cases.”
The. dissenting opinion in Fields v. Maloney, which was expressly approved in Stearns v. Railroad, and which has since frequently met the approval of this court, said of the case then under consideration: “The effect of the change of venue, therefore, to all intents and purposes, was the same, so far as concerned the power of the Livingston Circuit Court, as if the land over which the controversy arose had' been bodily transferred to Livingston county, and the territorial'limits of that county had been enlarged by such addition. If the court whence the cause came could have allowed the amendment or the change of the cause of action, then so also could the court to which the cause was taken — or else the statute means not what it says, and the power of amendment is lost by reason of the change of venue which is an impossible supposition.”
This doctrine has met approval in this court in many cases other than those above cited, including Hughes v. McDivitt, 102 Mo. 77, 84; Fears v. Riley, 148 Mo. 49, 61; Spurlock v. Railroad, 104 Mo. 658, and the same case, 93 Mo. 530. We cannot see why it should shock the imagination when applied to a case like this, where the title to land is involved. It is much more natural to suppose that the legislative power that grants jurisdiction over the land involved in the original suit to the court to which it is taken by change of venue, should also send with it jurisdiction over the affiliated rights of the parties, as broad as that from which it is taken, than that it should per
That it would have been proper for the Henry Circuit Court to permit the amendment does not admit of doubt. One of the most common grounds for amendment to a pleading is to correct a mistake in the description of the subject-matter of the litigation, and such mistakes occur nowhere more frequently than in the technical description of lands. This question came before this court at an early day in Callaghan v. M’Mahan, 33 Mo. Ill, in which it was decided that the plaintiff might, after the evidence was closed and the cause submitted, but before the entry of final judgment, change the description of one of the two tracts of land against which he was attempting to enforce a resulting trust, so as to make it cover a different tract from that included in the first description. That case covers this point perfectly. There, the amendment was made after the trial, and upon the suggestion of the court that the evidence had shown that there was a mistake in the description contained in the petition. Here the amendment was made at the suggestion of the defendants now complaining of it, by tendering in their answer the correct description of the Dorman farm. Had the court not permitted this it would have been error. [Noyes v. Richardson, 59 N. H. 490; Leeds v. Lockwood, 84 Pa. St. 70.] The defendants have also waived their right to raise the question' of departure from the original cause of action by answering the third amended petition and going to trial on the issues thus raised. [Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. 615; Holt County v. Cannon, 114 Mo. 514; Spurlock v. Railroad, 93 Mo. 530, 537.]
This suit was brought “under this article” by tbe filing of a simple petition for partition of tbe two tracts of land which have been called tbe “Wash Hancock Farm” and -the “Dorman Farm.” It soon, however, by tbe action of both parties, passed far beyond these simple limits. An accounting was demanded by tbe plaintiff for rents and profits to be applied to the extinguishment of a vendor’s lien, the holders of which were made parties, and she finally included in her petition a count in tbe nature of a bill in equity to have tbe defendant, who was seized in fee of tbe Wash Hancock farm, declared a naked trustee for tbe other parties to tbe suit. Tbe defendant also injected an issue by tbe charge that tbe interest of tbe plaintiff in all tbe lands involved bad been extinguished by advancements. At the trial tbe petition was amended by strik
The allowance of the attorney fee requires no formal motion. The court itself is familiar with the service rendered and presumptively knows without evidence what would be a reasonable fee (Eddie v. Eddie, 138 Mo. 607), and it is not required to be made at the time of or before the judgment is rendered, or before the filing of a motion for a new trial. The fact that in this case it was included in the same entry as the final judgment in .partition does not change, its nature in any respect, so that we do not think that it is one of those matters which are required under our practice to' be presented in the motion for a new trial. It is, however, such a matter as is required to be brought, into the record by bill of exceptions. This record shows that the defendants’ attorneys were in court when it was called for hearing, and, although actually notified of that fact, they chose not to take any part in the inquiry and took no exception to the order of allowance. It is true that they filed a motion to set aside the order and retax the fee, but this motion was not copied into the bill of exceptions, nor was there any direction to the clerk to do so. Under these circumstances we are of the opinion that the question of the propriety of this allowance is not before us for consideration.
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.
