Hill-O'Meara Construction Co. v. Sessinghaus

106 Mo. App. 163 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above).— 1. There is no bill of exceptions in the record before this court nor does it show that a motion for new trial or in arrest of judgment was made in the court below, except inferentially from a recital that they were overruled, but under the statute it none the less is the duty of the appellate court to consider errors, if any are apparent on the face of the record. South St. Joseph Land Co. v. Bretz, 125 Mo. 418; Lilly v. Menke, 126 Mo. 190.

For more numerous objections two specific assignments of error deserving consideration are distinguished. The complaint is reiterated in different methods that each lot should have been assessed apart from the other, and neither imposed with any greater burden than its own proportionate share of the cost of the improvement; Both by this court and the Supreme Court, it has been held that where lots are adjacent and appropriated.' in use and occupation as one property, they are to be so treated, alike whether improved or vacant. Wolfert v. City of St. Louis, 115 Mo. 139; Heman Const. Co. v. Loevy, 64 Mo. App. 430. In absence of testimony, the evidence is not revealed but the court found, among others, the issues, whether the lots were separate and distinct properties, and whether they had ever been united as one plat of ground, in favor of plaintiff, and this finding is conclusive.

2. While the judgment may he susceptible to fair criticism, yet any infirmities therein are harmless and in matters of substance it is deemed sufficient, and will not properly bear the construction sought to be attached to it by appellant, that it is a personal judgment against defendant. In the language of recognized authority, the test of a judgment now under the code is its substance rather than its form. “If it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action and shows in intelligible language the relief granted, its claim to confidence will not be lessened by a want of technical form nor by absence of language commonly deemed especially appropriate to formal judicial records.” 1 Freeman, Judgments (4 Ed.), sec. 47. An entry of record, much more vulnerable to complaints than the form here employed was held sufficient in Farley v. Cunningham, 43 Mo. App. 168.

The judgment is affirmed.

Bland, P. J., and Goode, J., concur.