243 Mo. 57 | Mo. | 1912
This suit to redeem was begun on the 16th of September, 1908, by the administrator and widow of a mortgagor of real estate against the purchaser at a foreclosure sale made on July 6, 1908. The petition alleged that the sum bid at such sale was a grossly inadequate price; that the trustee executed a deed and turned over possession to the defendant on the day of sale; that plaintiffs first heard thereof on the 10th of July, 1908, and tendered defendant the principal and interest and all costs of sale and all legal expenses, and asked to ■ redeem the property, which tender defendant,refused; that plaintiffs then gave notice of their intention to redeem, and on the 30th of July thereafter filed a bond as required by law. The answer admitted the purchase by defendant and the possession of the property by him, and denied the other allegations of the petition. The circuit judge found that the allegations of the petition were fully sustained by the evidence adduced on the trial, and filed a memorandum óf his findings of fact and conclusions of law, which show that he denied relief to plaintiffs upon the theory that no notice of intention to redeem was given on the day of sale. From that decree plaintiffs appealed to this court. The defendant having since died, it is now revived against his representatives and heirs at law.
OPINION.
I. It is urged by respondent, that no jurisdiction was vested in this court of this appeal for the reason that an affidavit therefor filed in the court below did not have a jurat affixed to it at the time it was filed. This point cannot be sustained. A supplemental abstract filed by appellant discloses that, upon a proper
The further contention of respondent, that the abstract on file does not show that the appeal recited therein to have been allowed on April 1, 1909, was allowed on one of the days of the February term of said court, cannot be sustained. This court takes judicial knowledge of the beginning of the terms of the circuit courts as fixed by statute. Under the law the circuit courts of the city of St. Louis hold five terms each year, beginning on the first Monday of the months of February, April, June, October, and December. In 1909 we know judicially that the first Monday in April was not on the first day of the month, hence the first day of April was a part of the February term of the circuit court unless it had sooner adjourned. The statement in the abstract implies that no adjournment had taken place prior to the meeting of the April term. We rule this contention against respondent.
It is finally urged by respondent that so much of the abstract filed by appellant as relates or as purports to give entries upon a record proper in the court below, fails to show that a motion for new trial was filed and overruled, and that the only averment in relation to that is contained in the portion of the abstract setting forth the contents of the bill of exceptions. This point is well taken, but it does not authorize the dismissal of the appeal or necessitate the affirmance of the judgment. It. simply excludes from review the contents of the bill of exceptions or any assignment of errors thereto, but leaves us free to consider the appeal upon the record proper including the decree rendered in the court below. [Hanks v. Hanks, 218 Mo. l. c. 676; Keaton v. Weber, 233 Mo. 691.] It is, how
PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.