228 Mo. 507 | Mo. | 1910
Mary Godfrey departed this life in the city of St. Louis, April 2,1904, intestate, leaving the property in dispute. The plaintiff is her son, and the two defendants are her daughters.
Plaintiff and defendants constitute all of her legal heirs. The present action is one in partition. Plaintiff sues for the partition of the property and asks that defendant Katherine Godfrey account for the rents and profits.
By the first paragraph of her answer Katherine Godfrey, who is the sole appellant herein, pleads: (1) that this defendant was the sole support of her mother for some fifteen years prior to her death, (2) denies that the rental value of the property was twenty-five dollars per month and denies that plaintiff has a right to share therein, and (3) avers that the deceased left no property except the land in dispute and that her estate is in the course of administration and the property will he required to pay allowed claims.
By the second paragraph of her answer, she avers: (1) that the plaintiff had received from deceased an advancement of $1000 (this alleged advancement was by reason of deceased having cared for plaintiff’s motherless children), and (2) defendant pleads that for fifteen years she paid the taxes, in the sum of $450, the cost of improvements, $300, and did all the work'
This answer Avas specifically denied by a reply filed by plaintiff.
Defendant Mary Ann Hosty, nee Godfrey, filed ansvrw in which she admitted that she had conveyed her interest to defendant Katherine for five hundred dollars, and took a deed of trust on the property for the said amount. That said amount was evidenced by a note and the only interest she had was the unpaid balance on said note, secured by the deed of trust aforesaid.
Defendant Katherine filed a motion for judgment upon the pleadings, which is the gravamen of her appeal, and will be further discussed.
This motion was overruled, and defendant Katherine elected, as shown by the record, to take no further part in the trial. So far as the record shows, the defendant Katherine took no further part in the trial up to the motion for a new trial. Evidence was introduced, but her attorney did not cross-examine the witnesses. She filed motions for a new trial and in arrest of judgment, which being overruled, she perfected her appeal. By the decree, nisi, plaintiff was adjudged to have an undivided third interest in the property, and defendant Katherine an undivided two-thirds interest. The interest of Katherine was subjected to a lien of $155.66 in favor of plaintiff for his part of the rents and profits, and further subjected to a lien of $140 to defendant Mary Ann Hosty, for the balance due on
Points made will be taken up in the opinion.
I. Respondent raises a question about the sufficiency of the abstract. The judgment is printed in full, but under the head of “Bill of Exceptions” rather than in the abstract of the record proper. In fact the judgment seems to have been incorporated in the bill of exceptions, and in printing the full bill of exceptions it is printed therein. Under the abstract of record ■proper we find this language: “The case was, on the same day, then tried before Hon. Jesse A. McDonald, Judge, and the said trial resulted in judgment for partition of the property in suit.” This constitutes the only abstract of the judgment. The date therein referred to is one at which motion for judgment was filed, as well as one at which Mrs. Hosty’s answer was filed. This date is fixed in the abstract as November 5, 1906, and as being one of the days of the October term of the circuit court. We are inclined to think that this sufficiently abstracts the judgment. But even if there be an omission in this regard, the appeal is taken by the short form, and a certified copy of this judgment is on file and with- the papers. We have heretofore held that in such case the defect in the abstract will not be deemed fatal. [Coleman v. Roberts, 214 Mo. 634.]
The Coleman case has been followed several times since upon this point. This contention of respondent is therefore disallowed.
II. The principal contention of the appellant is the alleged error of the court in overruling her motion for judgment upon the pleadings. Unfortunately for her there has been a useless expenditure of printer’s ink in briefing the point, because it never has been properly saved.
In the latter case we said:
“A motion for judgment on the pleadings is not a demurrer. It partakes of some of the qualities of a demurrer but it is not a demurrer, and hence it is not a part of the record. It is a matter of exception and can only be made a part of the record by a bill of exceptions.”
The question therefore raised by this motion is not before the court.
III. Whilst defendant Katherine elected to not appear further in the case, and did not appear further, except to file her motion for new trial and in arrest of judgment, yet in such motion for new trial she challenges the sufficiency of the evidence. The plaintiff has filed an additional abstract, and when the two are taken together there is ample evidence to fully sustain the decree. We shall not go into details, for whilst making the point, the defendant has pressed it with but little vigor. Upon the record for consideration, the judgment should be and is affirmed.