*1 jury upon fully completely instructed court so cause the appellant makes in complaint which insanity. subject of “Insanity introductory inter- is sentence is because his brief charge for the set as an excuse posed by the aounsel for defendant Liolios is cited the information.” State v. forth in Op 285 Mo. S. W. 1. The aPPellant, “by words defend- tion in that ease was the use of the expression counsel.” That was held “unfortunate” where ant’s temporary insanity at of the commission of the the time crime ground. interposed The case was not on that as a defense. reversed instruction, given, if leav'e out trial such should that ex- On another “by pression counsel.” defendant’s assigned by appellant relating Numerous other are
VII. errors to argument jury, State,— the selection counsel probably not trial. incidents would occur another Numerous objections exceptions during prog- were saved resg 0£ £ke the admission evidence . . prosecution. the conduct ot the The most of this we do deem importance sufficient specific to deserve consideration. Some of them preserved are not for new trial, in the motion likely are others occur another trial.
For the reasons mentioned the reversed the cause All remanded. concur. v. Albert Lee Kall meyer Trust Company; Albert Lee Appellant S. W. 585. . 46 Two, February 17,
Division *2 appellant. Peroival Birch aud Lamb for Gilbert Henry respondent. E.
WESTHUES, originated in Circuit Court of C.—This suit the here, peti- County, respondent filed a Plaintiff, Howard Missouri. seeking tion as follows: partition to real estate described certain fifty (50), (1) (2) township of “Parts Sections and two one eighteen Missouri, range (18) west, County, State of Howard Beginning line of point as follows: a the north bounded were 50, R. (1), township quarter fractional of section the southwest one River, east bank thence west intersects the East of the Missouri along quarter one said section line the middle of said section to along quarter point the where (1), thence section line to south the quarter the north section intersects the east line of said southwest being formerly by Kirk Earickson said land line land owned (1) section between sections in section one thence west to the line (2), along to (1) one the section line the and two thence south (2), along southeast of said thence west the section corner section two point the bank of the said section line intersects east line to where along northerly the east River, in a the Missouri thence direction thereof, place to the bank of the Missouri River and with the meanders beginning, together of with the accretions thereto.” alleged was of one-fifth
Plaintiff that it the owner an undivided Yager, interest, Albert four-fifths and defendant Lee an undivided Tri-County described; lands above that defendant interest the trust, was the of of Company Trust owner and holder a note deed Yager, 1928, upon dated June the of defendant Albert Lee interest dollars; eight of that defendant for the sum hundred Kallmeyer the in the deed of trust. was trustee admitting allegations joint plain- of
Defendants filed answer the any whatever, plaintiff title, the petition except had to tiff’s affirmatively pleaded Yager Albert Lee lands Defendants described. only lands, subject to be the sole owner in fee the deed of Company. trust favor of defendant Defendants prayed try lands, determine the title to the and to fee, Yager subject defendant Albert in- declare Lee the ow'ner deed of trust mentioned. hearing case,
The after prayed plaintiff, petition, decreeing plaintiff for in its land, of an owner undivided interest in free and clear one-fifth alleged From deed of trust. defendant Albert Yager appealed. Lee undisputed facts in case are as follows: William B. year 1914,
who-died intestate is the common source of title. Yager At the time his death William B. owned land in con troversy Yager widow, and left as his heirs the chil five Andrews, dren: defendant Albert Andrews, Lee Elma Eulah died, Wells. widow, Lester Ann Yager, prior filing partition suit.
Appellant Albert Lee claims title to an undivided four-fifths warranty deed, interest in the lands, April 28, virtue dated interest, 1928, duly co-heirs; executed his and a one-fifth as heir father, Appellant’s his William B. disputed title except the one-fifth is the con- litigation. troversy of this
Plaintiff, Glasgow, claims title to an undivided deed, lands, one-fiftb interest virtue of a sheriff’s under an day September, execution sale dated the May 12, 21st On obtained a and Jose- sixty-nine phine sum of three thousand and dollars *4 ($3,069.10), promissory and ten cents based on a Yager note. Ann petition Josephine separate Wells filed and answers to the plain- of tiff, promissory suit on Josephine the note. Wells withdrew whereupon separate her answer, a default was entered and tried on the the case was issue raised the answer A jury returned verdict Ann Yager, and following judgment: the court thereafter entered the adjudged by “It is therefore considered and the court that the recover of the defendants and Wells sixty-nine 10-100 thousand, three dollars with interest from this the rate per per the of of seven cent date annum, paid, compound annually the interest to till at the same rate of in- on, terest, provided promissory together in as the note sued with the suit, cost of this have execution therefor.” Yager duly from appealed, this her, Appeals; City to the Kansas Court of and that court on December for a trial. the case new judgment and remanded 1926, reversed the 6, 288 S. [See Yager, the pending appeal, on During the time the case was Glasgow issued on the an execution Peoples Bank of had of Jose- all the title and sheriff levied on and sold and the Peoples Bank of controversy. in phine in lands here the and, purchaser at this sale here, respondent became the Glasgow, the 21, deed, September dated mentioned, received a sheriff’s as above Tri-County Company, Trust trust, by the 1926. The deed of held appellant and his trust 16, By this deed of June was dated Kallmeyer, as S. conveyed land to above described wife the eight hundred dollars note for trustee, payment of a to secure the Company. favor by quoting the be best stated in this case can Appellant’s position are: assignments They of error. testimony case, the trial court erred this undisputed
“1.
theOn
no final
adjudging
there w'as
finding and
in not
v. Ann
Peoples
Bank of
the case of the
could be had
which a sale
appeal, under
pending the
plaintiff.
pass
would
title to the
case,
court
undisputed
this
Upon
evidence
“2.
Kan-
holding
that the reversal
erred in not
Glasgow v. Ann
City
Appeals,
sas
Court
judgment of the trial
Josephine Wells reversed
Josephine Wells.”
as to
1919, now Section
1528, Revised Statutes
Appellant cites Section
327; Mc
Barmon, 193 Mo.
1929;
Cramer
1077,
Statutes
Revised
Company,
Transit
590; Dixon v.
Quitty
Steckdaub, 190 W.
there
case shows
authority
record
646,
that the
App.
as
Mo.
therefore,
judgment, as to
was no final
Juris,
Corpus
page
nullity. Appellant cites
execution sale Avas
373; Chicago Herald
.appear and default, and make against such as by may be ment default only judg- others; final one against but may proceed the cause ” 1919, sec. be given in the action. [R. ment shall 772 considering provisions just
After quoted statute by appellant examining decisions cited after the record ease, we find that the trial Bank case of the Josephine v. Ann only substantial ly complied question, with the precisely. statute in it but followed discloses, Josephine separate record when her withdrew' answer, judgment default was entered case and the proceeded against jury Ann After found the issues against Ann Yager, judgment was entered both defend ants. This was a final disposing of the entire case as to parties concerned, all just provides. [Fleming as the v. Mc statute Call, (2d) 60; Houchin, 35 S. W. v. Conrath 34 S. W. 1. c. (10).] 195 was This by appellant. done the cases cited Those point procedure cases out the correct to be followed and we find it identical with that followed the court the case under discus sion. question remains, judgment against did the reversal of the judgment against also Josephine reverse the Wells? It judgment
must be remembered that the suit and on a were based signed promissory note both Ann Wells. liability joint Their on this note was and several. The one defendant may have had a A judgment against valid defense and the other not. w’ay dependent either was in applicable no on the other. The rule Corpus Juris, 1206, stated as follows: binding “A suit, reversal is parties on the but does not inure parties against benefit whom rendered join lower court and appeal, who did not rights unless their parties and liabilities and appealing those are so interwoven dependent inseparable, as to be in which case reversal as to ’’ operates one as a reversal all. clearly This case comes within the rule first stated. The record does not disclose the case was retried after it was remanded Appeals. the Court assuming But that it Wasnot and the case was dismissed assuming City or the Kansas Appeals Court of outright, had reversed appeal on the Yager: appellant could the contend that no there would be judgment against Josephine Wells, by reason of the reversal of the Yager? say not. We Wells with drew her disposing answer final was entered of all parties the issues and all the to the suit. That became final, expiration with of the term of entered; w'as and no power court had the except proceeding set it aside in a brought direct for that purpose. (3251) J., page cited; C. Anglo-California and cases Smith [4 c, 1. Banking (Cal.) State ex rel. Rankin Co., Pac.
773
Motor
Rhodes
v.
1020; Dalton
Mont.,
(Mont.)
257 Pac.
Corp.
Co., 57 So.
821; Copeland Dixie Lumber
(Miss.)
v.
Co., 120 So.
40 W.
208,
S.
Haid,
v.
Mo.
State ex rel.
before
case
to the
party
a
"Wells was not
affecting
any order
enter
not
Therefore,
court could
appeals.
that
127,
read:
we
96 Am. St.
judgment against
In
her.
appel-
an
jrrdgment of
operation of
surely
“It
essential to the
is
It
affected.
to be
parties
jurisdiction of the
have
late court that it
restricted
be
must
necessarily
reversal
of a
the effect
follows
parties
made
been
have
process,
parties
by notice or other
who,
to the
appeal.”
by appellant. How
find with the cases cited
We have no fault to
they
rule,
support the
ever, an
will disclose that
examination of them
appealing
interwoven
rights
not
are so
parties
where the
of the
that a reversal
dependent
rights
parties appealing
upon the
judgment
parties.
to all
necessarily
as
will
reverse the
case
Blackmore, 205 S.
State
apply
not
in this case.
v.
That rule does
was a final
against Josephine Wells
(1-5).
judgment
W. 1. c. 627
The
judgment
judgment
by the reversal
valid
and was not affected
Josephine Wells was
against
Ann
The
Yhger.
dependent upon
[Shuff
Plaintiff, during
129,
(3).]
City,
Kansas
simmons, concur. opinion by Westhues, C., foregoing is a- PER CURIAM:—The judges All of opinion the court. concur. dopted