Windes v. Earp

150 Mo. 600 | Mo. | 1899

ROBINSON, -J.

The original proceeding in which the motion to be considered on this appeal was filed, was commenced in the Camden county circuit court by appellant as plaintiff and heir at law of Thompson J. Kelley, deceased, against the other heirs of said Kelley and one J. 0. Earp (who became interested with them in the land by purchase), to partition the real estate belonging to said Thomas Kelley in hjs lifetime. H. H. Windes, the husband of appellant, was joined as a party plaintiff in the suit.

At the May term, 1894, when all the parties to the cause were present in coirnt, the case was taken up for hearing, and the court proceeded to ascertain their respective interests and to determine whether the land should be partitioned in kind or the same ordered sold and the proceeds be partitioned. At the August term, 1894, the court entered its judgment of record therein, setting out the interests of the parties so ascertained, together with the charges against each interest, and finding that the nature and amount of the property sought to be divided and the number of the owners thereof was such that partition of the land in kind could not be made without great prejudice to the owners, made its order that said property be sold according to law at the next term of court, the purchaser to pay one-third cash and the remaining two-thirds in equal payments in twelve and twenty-four months respectively, and that the proceeds of said sale be partitioned between the parties according to their respective interests as set out in said judgment.

What was done in the original proceeding at the two succeeding terms of court, there is nothing disclosed by the record before us, except what may be inferred from the recitation contained in the motion filed by the plaintiff, Nancy T. Windes, at the August term, 1895, the action of the court in overruling which constituting the grounds of plaintiff’s appeal. The motion is in words and figures as follows:

“Now comes the jfiaintiff, Nancy Windes, one of the .above named plaintiffs, and states that in rendering judgment in said proceeding the rents and profits were charged against this plaintiff, Nancy Windes, and that the same was errone-oasly so charged, in that said premises, at the time of the partition proceedings, were rented and occupied by H. H. Windes, a tenant of Mrs. Kelley, and he alone is chargeable with the rents and profits.

“Your petitioner further states that the purchase money of said sale is unpaid and that the said Earp is committing waste upon said premises, by cutting valuable timber off from said promises, and impairing the security of the money due this plaintiff, as an heir of said former owner, Thompson J. Kelley.

“Whereupon the plaintiff demands that said rents and profits be charged against the said tenant, and that proper orders be issued to protect the said property from waste.”

On plaintiff’s motion being called up for hearing the following proceedings were had:

“In the circuit court of Camden county, August term, 1805.

“H. H. Windes et ah, plaintiffs, vs. James 0. Earp et al., defendants.

“Plaintiff offered in evidence mitten contract for the renting of the land in controversy to EL EL Windes and Son.

“Defendants by counsel object to the contract for the following reasons:

“1st. Eor tbe reason it is incompetent, irrelevant, and has once been passed upon by tbe court in rendering tbe decree.

“2d. Eor tbe reason tbat one of tbe parties to tbe contract is dead.

“Objection sustained by tbe court, to which ruling of tbe court, in sustaining objection, plaintiffs by counsel then and there at tbe time duly excepted.

“H. II. Windes, called as a witness on bis own behalf, being duly sworn, testified as follows:

“Direct examination by Mr. Nixon, for plaintiffs.

“Q. Now you may state, whether you were in possession of this land in controversy at tbe time tbe partition case was1 tried here ?

“Defendant’s counsel object as incompetent and irrelevant.

“Objection sustained by tbe court, to which plaintiffs, by counsel, then and there at tbe time duly objected and excepted.

“Plaintiff’s, counsel offered to prove by Mr. 'Windes, tbe witness, tbat be and bis son were in possession of this place in controversy at tbe time tbe proceedings for partition were instituted in this court; tbat be and bis son continued tenants of Mrs. Ilelley, deceased, from and after that time until tbe time of her death; tbat they have remained there under tbat tenancy up to tbe present time; tbat tbe wife of this witness (Nancy Windes) was not tbe tenant of Mrs. Kelley and never bad control of tbe place; tbat Mrs. Nancy Windes never paid any rent and never agreed to pay rent and was not responsible in any way for tbe payment of tbe rent; tbat she was heir and daughter of Thompson J. Kelley and distributee under this judgment.

“Defendant’s counsel objects for tbe reason tbat tbe subject-matter in tbe partition suit was adjudicated as to this land in controversy and tbat H. H. Windes and bis wife were upon tbe premises; that tbe judgment and decree rendered in that case can not be attacked in that way; and tbe testimony is incompetent, irrelevant and immaterial.

“Objection sustained by tbe court, to wbicb ruling of tbe court in sustaining defendant’s objection, plaintiff, by counsel, iben and there at tbe time duly objected and excepted.”

No further steps being taken upon tbe motion tbe court refused to correct tbe judgment theretofore entered in tbe premises and overruled plaintiff’s motion, to wbicb action of tbe court tbe appellant at'tlie time duly objected and badnoted her exceptions thereto.

Tbe appellant then filed her motion for a new trial as follows:

“Now come tbe plaintiffs and move tbe court to grant a new trial, and for grounds state:

“1st. That said judgment is contrary to law and evidence.

“2d. That tbe court erred in refusing to admit proper evidence offered by tbe plaintiffs.

“3d. That tbe court erred in admitting improper evidence for tbe defendants.

“4th. That tbe judgment against the plaintiff in parti • tion proceedings charging Nancy Windes with rents was without evidence and authority.

“5th. That tbe entry and proceedings in tbe partition proceedings, charging tbe plaintiff, Nancy Windes, with rents, was null and void, and contrary to law and evidence.

• “6th. That tbe plaintiff, Nancy Windes, was not tbe tenant of Sarah Kelley, and never rented tbe said promises.”

This motion being overruled, plaintiff again excepted to tbe action of tbe court, filed her affidavit for an appeal in due form, gave bond, and brings tbe ease to this court.

Whether tbe trial court refused to open up tbe inquiry into tbe matter of tbe charge against tbe interest of tbe plaintiff Nancy T. Windes and to modify its judgment as suggested by plaintiff’s motion, for the reason that the testimony offered by her at the hearing of the motion, had once been heard and passed upon by the court, as was suggested in the objection made by counsel for defendant to the testimony as offered, or whether the same was considered by the court as incompetent and irrelevant to the j^sue presented, or whether the court considered the motion filed as untimely, there is nothing in the record or in the brief of appellant to inform us, and if for any reason the trial court was justified in its action this court would be compelled to sustain same, if the overruling of said motion was a proceeding in the case from which an appeal would properly lie.

Besides, on plaintiffs’ appeal in this case, there is nothing in the record to indicate upon what facts the court in the first instance acted in arriving at the judgment made, from which we could determine (if we were authorized to consider this appeal), its correctness or falsity, or whether its action on plaintiff’s motion to modify the judgment was justified or not. The judgment from which plaintiff now seeks relief, was made without objection or exception at the time, and plaintiff will not be allowed, through the indirection of a motion, which is here styled “a motion to modify,” to assail that judgment, or the court’s action in refusing to set aside the same and rehear the facts upon which it was predicated, when the judgment itself could not have been directly challenged on appeal after the lapse of two terms from its rendition, without objection or exception. The right of appeal from interlocutory judgments in partition before final judgment in the cause, given by the amendment of 1895 (Session Acts 1895, page 91), certainly contemplated exceptions would be timely made, or like other judgments, they would become final and conclusive upon the matters determined and adjudicated. Plaintiffs’ objection to the interlocutory judgment herein, comes too late at the third term of court after its rendition; and to put that objec: tion. in the shape of a motion to modify and then attempt an appeal from tbe court’s action thereon in overruling same, would be the accomplishment by indirection that which could not be done by direction'. There is nothing before the court open for review in a proceeding of this character. Plaintiff’s appeal is therefore dismissed.

All concur.