*1 estop the owner of would and circumstances conditions claiming*priority. of trust deed second incompetent admitting court erred that the made Contention incompetent alleged evi- and no briefed, point is This evidence. in an through the grope record will not pointed out. dence legitimate basis for is a or not there whether determine effort to made. contention trust a first deed of Hulse had undisputed The evidence would $1100. No one loan of the additional made before he $5500 trust, the loan increase deed first release his he would believe secure trust a second deed accept knowingly $6600, then Frick wife Katherine note, or J. Frick owned it. If did Frick ivas authorized W. J. husband it, and her owned $1100, loan of the additional Hulse made her at time represent presented. question would different Williams, G., concurs. remanded. and cause Judgment reversed . hereby C., is opinion foregoing Frank, PER CURIAM:—The Trimble, concur,' except All opinion of adopted J., P. absent. Harry Rudd, B. Respondent, Best), (now Rudd
Ernestine Appellant.* February Appeals. 1929. City Court of Kansas *2 * Corpus Juris-Cyc Divorce, 19CJ, 811, 352, 56; References: p. section n. 823, p. 360, Motions, 42CJ, 39, section p. 479, n. section n. section 115, p. 502, n. 21.
Cowyill & Popham, respondent. John B. Pew and Burr N. appellant. Mosman LEE, C.—This is an appeal from an order of the circuit court modifying a divorce decree in so far as it custody affected the of a minor child. Plaintiff obtained a divorce from defendant on the 24th day of December, 1924, and was awarded custody the absolute aof minor child, Doris Marie Rudd. Thereafter, the defendant filed and decree consent of parties court entered an day order on the December, 21st 1926, by which it was provided that the defendant, mother, Rudd, Harritt aunt, and his Elizabeth T. Barbee, or one of them should the temporary have custody of the child within county, Jackson Missouri, only, on Satur- day of each week and also for four non-eonsecutive weeks each sum- during mer the school period. day vacation On the 8th April, 1927, plaintiff filed a omitting which, the decree signatures verification, and is as follows: ‘‘ plaintiff Comes now the herein requests and moves and this honor- able court to and set aside the order of 1926, December 18, amending modifying and 24, the order 1924, December and grant plaintiff, original granted, said order the absolute and complete custody and control Doris Marie Rudd, minor daughter parties of the hereto, grounds your and for thereof, movant alleges and shows that there have been changes such in the relations,
m desires, life, position, actions, abilities, feelings, station conduct, having parties rights hereto and those and of the deserts, entitlements require for the child as said order of said interest your movant parties and child and this best interests of said herein and for the relief pray right will to introduce evidence ever sought. herein and
“Wherefore, plaintiff prays judgments as and orders, decrees, modifications for such further appear this honorable court and discretion of shall and under just touching rights parties meet and ” and circumstances. facts day proper that on the first appears record following of record: order was entered June, term of court the attorney person her plaintiff day, “Now on this comes *3 attorney. by person in and his and comes defendant upon to hearing plaintiff’s, coming “Now this cause on Rudd, which custody to of Marie said motion decree as Doris Doris Marie is by and of Rudd is the court sustained the plaintiff. awarded to the by that the is the court be allowed
“It further ordered defendant minor at all reasonable times.” to see and visit said child perfected appeal an and a filed bill Thereafter, the defendant ap- but for new trial. In this court exceptions, filed no motion petition pellant or for review on the attacks the motion to ground it sufficient to warrant court’s that fails to state facts changing Appellant in modifying action and the decree. also com: wholly plains support insuf- that the of the motion evidence Respondent ficient to that warrant the order of contends may we not sufficient trial and that review the motion is trial was filed. motion for new evidence because no allegations must first whether or not the determine give to the trial court the decree were sufficient jurisdiction to the order that it did make. an instrument make Such petition a to review and it is sometimes called sometimes referred petition defective, pleaded it a a it was because to as motion. As any as nothing motion, but is it better a our conclusions. Nor because by provides accompanied shall a written that all motions be statute founded; specification upon they which of the reasons are urged support specified not shall the motion. so be reason [Sec- 1267, R. S. tion 1919.] might It trial court well have follows that the denied therefore respondent nothing pleaded. hearing, conclusions were a because but although allege pleading to facts It is true that a will often be held permitted testify words a witness would not give pleading ground attempted on the witness his con- that
475 elusions. required Under our party statute no state evidence nor pleading, required Ms is lie to disclose therein means prove which he intends to his case. Rl. S. [Section 1919.] that follows a which regarded statement would be as the conclusion regarded of a witness will often be statement of an ultimate pleading. in a general fact if the conclusion is so that the opposing party charge cannot against determine the nature of him from face pleading pleader or if motion, alleges merely exist, sufficient conclusion that ultimate facts charges allegations instrument conclusions of law and the are insuf- ficient. pleading
It does not follow that a which thus will not defective support judgment, sup nor that a will not motion thus defective port an appropriate Thus answer “each and order. which denies every allegation” petition may material of a not be attacked although plain this pleads first time after it is con verdict, Lindsay, 73 v. Phillips, clusion law. v. Mo. Smith [Edmonson allegation general many times held 76.] negligence verdict. is sufficient attacked before it be it Likewise Leonari, Co., v. R. U. S. etc., [Geninazza might pleading have in a which imperfection has been held that might attacked by an which have been been remedied or amendment make will not vitiate ren a motion to more definite Bowie v. Kansas McCoon, v. [Haygood dered thereon. City, Mo. 464.] legal of a conclusion
And an raised the statement issue regarded as sufficient presents controversy will be point real 284; Slaughter v. Mittelberg, 299 Mo. after verdict. [Ehrlick *4 Railway, 80 104; v. Mo. 106 Mo. Jackson Slaughter, App. 147.] to would sufficient allegations before us that is obvious the Although petition. ain judgment they a contained support if were yet, conclusions those nothing conclusions, pleader forth but the set defectively in very matters issue. set forth the different the motion is of practice the trial a The sufficiency the of The pleadings. practice upon under proceedings speaking a Furthermore, when orally. allegation may be attacked resisting by simply may general be tendered issue motion is filed the required. is motion to a pleading or other motion. No answer the form, such in irregularity Nevertheless, an C. J. 501.] [42 waived motion, is deemed the grounds of to forth the failure set J.C. opportunity. first objection [42 made at the is unless thereto respondent’s to make a motion appellant of to file The failure 479.] defects the waiver of itself, a not, of definite is motion more informa- particular more desired allegations. appellant However, duty to motion, it was by respondent’s conveyed than tion orally or either ask, to motion, or the ask court to dismiss 476
writing, that object the motion definite, be made more toor to the any introduction of evidence under the motion. cannot He invite expense a trouble of trial and the introduction of evidence, and he then, after has found himself unsuccessful upon the issues in which joined, he for object the first that time were tendered issues allegations of respondents’ conclusions. We hold motion to though the decree, is defective sufficient to sustain the order of hold weigh that we cannot the evidence in this case for the appellant
reason that failed to file motion a trial. new been held appellate may Missouri that the review the action of the trial quash pay court on a motion or execution, to over money on execution, judgment or to irregularity, set a aside or though set aside an sale, execution even motion for new trial 383; has been of [City 380; filed. St. Louis v. 107 l. Brooks, Mo. c. Steele, App. 85 Steele v. 224, l. Mo. c. there is another 226.] judgment independent class of motions after which are as treated proceedings; judgment and after on such motion for motions a new required trial appeal. in order to on authorize review of errors v. Juede, 267; 153 Mo. c. 92 App. 259, Lilly Menke, l. v. Mo. [Hemm App. 354.]
A divorce decree so far as it effects the independent proceeding. children is nature It is not only like a motion to control an execution, relief where sought prevention proceeds abuse carries final into effect. On trial of motion to original decree, divorce on trial facts considered are res adjudicata, and the evidence is restricted to establishment of facts occurring original question trial, merely upon not given proper to whether effect, or not has but its rights parties. to determine The the substantive relief original sought, independent but of that decree. decree, under the Therefore, necessary appellate a motion for new trial is to enable the court to proceeding. review the evidence taken in such a v. [Cole 518; Deidesheimer, 256 74 Cole, App. S. W. Deidesheimer v. Mo. 234; 555; Yordick, Arnold, Vordick v. v. App. Arnold 224; S. Steele, App. v. Loewen- Steele v. Mo. Erskine stein, 82 Mo. App. Mitchell, Crow Appellant many calls our attention to cases has been held where it necessary permit a motion for new trial is not consideration of occurring judgment. errors on trial In *5 after final except cited, two of the eases the motion was directed to the con- trol judgment attack because execution or appearing upon proper. matters the record the face of Judge Appeals, speaking for the St. Louis Court of has Nortoni, necessary was announced rule no motion for new trial twice from final appeal when taken motion after with was are in the to motions which stating exception applies out proceeding under independent proceedings, where nature of pro undoubtedly independent nature of was consideration 673, ceeding. Piekel, App. cases, Pickel v. In one of these judg money a final alloiving suit appeal was from an order Dougherty, case, Graff v. In the other for maintenance. ment upon a ruling of court App. appeal 56, was jurisdiction of ground that the on the motion to set aside case fraudulently invoked. In neither court has been both In of the case. necessary a decision of the rule statement to the had been saved exceptions pointed out that cases court exceptions always held that ruling of trial court. preserve filed in order exceptions a bill must be saved and judg final made after from an order appeal evidence for review on St. [City of necessary or not. ment, for new trial is whether motion Brooks, Mo. Louis v. decree affirmed. modifying the divorce of the trial The order Lee, G., concurs. here- C., is Barnett, foregoing opinion PEE. CURIAM:—The Trimble, except concur, All adopted opinion J.,
P. absent. Appellant.* Schmeltz, v. Fred Respondent, Williams, H. Charles City Appeals. March 1929. Court of Kansas