231 Mo. 82 | Mo. | 1910
This action was brought under section 650, Revised Statutes 1899.
In substance the petition avers that tbe plaintiff is tbe owner in fee of tbe tract of land, described therein, as an accretion to other lands belonging to him on tbe west shore or bank of tbe Mississippi river in Marion county.
Tbe specific tract to which plaintiff asserted title is about fifty acres, tbe southern boundary thereof being tbe road embankment from tbe old bank of said river to the bank or shore line of Goose Island, tbe northern line thereof being a dike made by tbe United States Government, tbe western line being tbe old bank of tbe said river and tbe eastern line thereof being tbe said Goose Island and tbe Mississippi river. Tbe petition prayed tbe court to ascertain and determine tbe title or estate of plaintiff and defendant respectively in said tract and to adjudge and decree tbe
The answer, after specific denials of the facts alleged in the petition, states that defendant is in the actual possession and occupancy of the east half of said tract, claiming title thereto, and that his title therein and possession thereof cannot be litigated or adjudicated in this proceeding.
Defendant further states that he is the owner in' fee of Island No. 7 in the Mississippi river, commonly called Goose Island; that the effect of the building of the several dikes and dams therein mentioned by the United States Government was to deflect the waters of the said river running between said Goose Island or Island No. 7 and the Missouri shore, and that part of the bed around and above the head or northern end of,said island gradually filled up over the entire extent thereof by the gradual and continuous deposits therein made by the water until said island and shore became connected, and by reason thereof the eastern half of said new made land, extending the full length thereof, became attached to and formed a part of said island and is owned by the defendant. That the persons under whom plaintiff claims title to the Missouri shore line only asserted title to themselves in the west half of said new made land, and disclaimed title to the east half thereof, and defendant erected a fence on the division line and has ever since maintained the same.
The-reply was a general denial.
When the cause was reached for trial the defendant filed his written motion wherein he requested the court to declare the law to be that under the pleadings, the title to said tract could not be tried under section 650, Revised Statutes 1899,- second, that under the Constitution and laws of this state defendant was entitled to a trial of the question of his title by a jury,
Thereupon plaintiff and defendant agreed in open court: First, that at the time of bringing this suit plaintiff was and is now the owner of and in possession of fractional sections two and eleven in township 59, range 5, west, in Marion county, Missouri, and that the east line of said sections was and is the west shore line or bank of the Mississippi river as originally surveyed by the United States Government. Second, that defendant is and was the owner of and in possession of Island No. 7 or Goose Island, in the Mississippi river, according to the Government survey of the United States, the same being in section 11 if the same were extended into the river.
Thereupon counsel for plaintiff announced to the court that plaintiff would not and did not claim title to any land south of a line running from the north point of Goose Island or Island No. 7 west to the old bank of the Mississippi river, but claimed and would claim title to the new made land north of said line, and abandoned all claim to the new made land lying south of said line, and between said line and the roadway mentioned;
Each party then offered and introduced evidence tending to establish his claim to said new made land, the tract in controversy, the plaintiff’s evidence tending to show that it was an accretion to his fractional sections 2 and 11 in township 59, range 5, and defendant’s evidence was directed to showing said tract was an accretion to his Island No. 7 or Goose Island. It was on this ground the battle was w;aged.
There were no equities pleaded, either in the plaintiff ’s petition and reply or the defendant’s answer, nor did the evidence- tend to show a right in equity on either side. It was a plain contest at law, a question of fact, as to which tract the new made land in controversy herein was an accretion. In a word, the issue
The pleadings and the evidence required nothing but a plain judgment at law either for plaintiff or defendant. But plaintiff insists defendant has not saved this point in such a manner as to entitle him to complain of the error of the circuit court in denying him a jury trial. The record discloses that he demanded a jury and it was denied. The pleadings presented a case for a jury trial. There was no waiver of this right. Having been refused a jury and the judgment being adverse to him, he filed his motion in arrest of judgment, but did not specifically set forth the denial of a jury trial, but simply that upon the record the judgment was erroneous.
Section 28 of article 2 of the Constitution of Missouri ordains that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.”
Our Code of Civil Procedure provides (sec. 691, R. S. 1899), that “an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jnry, unless a jury trial be waived or a reference ordered as hereinafter provided.”
Section 693 provides: “Parties to an issue of fact shall be deemed to have waived a trial by jury in the following cases: First, by failing to appear at the trial; second, by written consent, in person or by attorney, filed with the clerk; third, by oral consent 'in . court, entered on the minutes. ’ ’ In Briggs v. Railroad, 111 Mo. l. c. 175, it was said: “No waiver in any of these methods is shown to have been made. This er
It appearing that defendant not only did not waive a jury trial, but actually demanded one, and it having been ruled that it is not necessary to save an exception, as the error is one of record and can be taken advantage of by a motion in arrest, the question arises can it not also be taken advantage of by writ of error or appeal without a motion in arrest? In our practice there is practically no difference between an appeal and a writ of error. Each brings the record before the appellate court, and by section 866, Revised Statutes 1899, it is provided: “The Supreme Court, St. Louis Court of Appeals and Kansas City Court of Appeals, in appeals or writs of error, shall examine the record, and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law,” etc.
In Bateson v. Clark, 37 Mo. 31, it appeared that the objection was not raised in the circuit court and no exceptions were saved, and it was insisted on for the first time in the Supreme Court, but the Supreme Court noted the distinction between error of record and exception merely, and held that error apparent in the record proper could he'considered and remedied in this court whether any exceptions were taken or not. If the insufficiency of a petition or the failure to swear a jury, or the like, can be taken advantage of for the first time in the appellate courts, who will say that a positive denial of a plain constitutional right apparent • on the record proper may not also he taken advantage of, in this court, without a motion in arrest? In our opinion no such distinction can he made, and we think that while the motion in arrest was not sufficiently specific to have reached a matter of exception merely,
The denial of a jury trial to defendant was error for which the judgment must be reversed, and the cause remanded. [Briggs v. Railroad, 111 Mo. l. c. 174; Benoist v. Thomas, 121 Mo. 660.]
Having reached this conclusion, it becomes unnecessary to maintain the constitutionality of section 650, Revised Statutes 1899, which learned counsel assail in a strong brief on the theory that it denied a jury trial. Having concluded that when the issues are of purely legal cognizance as in this case, the parties are entitled to a jury trial, the objections to the constitutionality of the act vanish.
II. Counsel for defendant have assailed and counsel for plaintiff defended the findings and conclusions of the circuit court on the facts of the case. Inasmuch as we are of opinion the court erred in trying the case without a jury, we refrain from expressing an opinion on the weight of the evidence. It will be for the jury under proper instructions to weigh the evidence and find the facts, and manifestly this court ought not to express an opinion thereon in advance. Moreover the testimony may be different on a new trial.
We will say, however, that we do think that the map-, designated in this record as “Plaintiff’s exhibit No. 1” is not a “survey ” by the United States Government but is a diagram of the situation made by the officers in charge of the work of improvement of the Quincy harbor. As such it was competent to enlighten the jury as to the relation of the Island, the mainland on the Missouri shore, the dikes and road, but not as an official survey.
For the refusal of the demand of defendant for a