Riley v. Sherwood, 155 Mo. 37

155 Mo. 37 | Mo. | 1900

ON REHEARING.

BURGESS, J.

In an opinion filed, by us in this case on January 22, 1900, we held that, for failure of appellants to comply with the rules of this court by filing a complete abstract of the record, the appeal being by what is called the “short form,” under the provisions of section 2253, Revised Statutes 1889, the judgment should be affirmed, which was accordingly done. Plaintiffs now present a motion for rehearing on that ruling, and upon reconsideration we are satisfied that we erred in affirming the judgment upon the ground stated in the opinion, and that the only course open to us in such circumstance was to dismiss the appeal ox continue the case. We, therefore, sustain the motion and withdraw that opinion, and as plaintiffs insist that whatever imperfections there were in their abstract were cured by the abstract of defendants, we will dispose of the case upon that theory.

This is a statutory contest of the will of Mrs. E. A. Shootman, deceased, upon the grounds of want of mental capacity to make a will, and undue influence in its execution by some of the beneficiaries named in the will. The case was before this court on a former appeal by defendants, and will be found reported in 144 Mo. 354. It was then held that there was no substantial evidence tending to support either of said grounds, and that the trial court should have sustained a demurrer to plaintiffs’ evidence, and that it committed error in failing to do so.

The court saying, “And for these errors the judgment is reversed and the causé remanded with directions to the circuit court to proceed in accordance with the views herein expressed.”

After the mandate from this court was received by the clerk of the circuit court of the county from which the appeal was taken, and the case again came up to be disposed of, the defendants asked the court to enter up judgment establishing the will in contest to be tbe last will and testament of tbe testatrix, Mrs. E. A. Shootman, deceased, in accordance with tbe opinion and mandate of tbe Supreme Oourt, and over tbe objection and exception of plaintiffs, judgment was rendered in accordance with such request.

Therefore, and in due time, plaintiffs filed their motion to set aside tbe judgment, which being overruled they appeal.

Tbe only question to be determined is in respect to the proper construction to be placed upon tbe last paragraph of tbe opinion of tbe court when tbe case was here before, in which it is said, “Upon tbe evidence we think the circuit court should have sustained a demurrer to tbe evidence, and refused tbe instruction numbered 8 given at tbe instance of defendant,, and for these errors tbe judgment is reversed and tbe cause remanded with directions to the circuit court to proceed in accordance with tbe views herein expressed.” It is clearly expressed in this part of tbe opinion that under tbe evidence adduced plaintiffs bad failed to make a case, or to show such a state of facts as entitled them to tbe opinion of a jury thereon, and, as after tbe case was remanded by this court and again called for trial in the circuit court, they did not claim or pretend that they bad any new or other evidence than that which was introduced upon tbe previous trial, there was but one course for tbe court to pursue and that was to enter up judgment establishing tbe will as it did.

In Atkison v. Dixon, 70 Mo. 381, in tbe concluding part of tbe opinion it is said: “We think tbe defense should have been sustained and a decree entered accordingly. We will, therefore, reverse tbe judgment for tbe plaintiff, and remand the cause, with directions to the circuit court to proceed in accordance with this opinion after Mrs. Dixon shall have been made a party.” Notwithstanding tbe judgment reversing and remanding tbe cause, plaintiff thereafter in vacation of court dismissed bis suit, and in a proceeding by tbe defendant therein by mandamus against the judge of the circuit court of the county in which it had been pending to Compel him to reinstate the case on the docket- of his court, and to proceed therein as previously commanded by this court, it was said: “When the case of Atkison v. Dixon was here on appeal (70 Mo. 381), we regarded "the evidence- as.having amply established the equitable right of Mrs, Dixon to the land; and such right was necessarily contested and drawn in question in that suit of plaintiff: to-eject her husband; and so'we reversed the judgment and ordered one to- be entered in accordance with that opinion; but upon suggestion being made that the wife had never been made a party we so far changed our opinion as to require her first to be made a party before a decree should be entered. This is the effect of the opinion, although the idea intended ,to be conveyed thereby is somewhat lacking in clearness. If the plaintiff had desired the privilege of reopening the controversy; if he had now an independent right to assert against Mrs. Dixon, rights never before litigated, he should by timely -application have requested a modification of our opinion -and mandate as to have secured the desired privilege.” [State ex rel. v. Givan, 75 Mo. loc. cit. 517.] The peremptory writ Was awarded.

So in the case at bar when it was here before we considered the evidence as having .amply established the issues involved in favor of the defendants, and reversed the judgment, and remanded the cause to be proceeded with in accordance with the views expressed in the opinion.

While the idea intended to be conveyed by the language used in reversing the judgment and remanding the cause with directions to the circuit court to proceed in accordance with the .views expressed in the opinion, is somewhat lacking in clearness; yet when taken in'connection with other words in the same sentence, to-wit, “we think the circuit court should have sustained a demurrer -to the evidence,” there is no escape from, the conclusion that the. intention of this- court in reversing the judgment and remanding the cause to be proceeded with according to the opinion, in the absence of new or additional evidence on the part of plaintiffs, was, for the court to enter up judgment establishing the will. The court could not have proceeded in accordance with the opinion in any other way, the language used is incapable of any other fair, or reasonable construction. The judgment is therefore affirmed.

Gantt, P. J., and Sherwood., J., concur.