In re Estate of Howard
| Decision Date | 03 December 1907 |
| Citation | 106 S.W. 116,128 Mo.App. 482 |
| Parties | In re Estate of LACLEDE J. HOWARD, Deceased; MARY HOWARD, Appellant, v. STRODE, Administrator, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John J O'Connor for appellant.
(1) The plaintiff in any action at law or in equity has the right, at any time before the cause is finally submitted to the jury or to the court, to take a nonsuit or dismiss his cause. And this is true even when the cause happens to be an appeal from the probate court to the circuit court. This right is given to appellant 42 Mo.App. 376; Lawrence v. Shreve, 26 Mo. 492; Wood by section 639, Revised Statutes 1899. Wilson v. Stark, v. Nortman, 85 Mo. 303; Horris v. Beam, 46 Iowa 118; Morrissey v. Railroad, 80 Iowa 314. It was therefore error for the trial judge to refuse plaintiff leave to take a nonsuit or dismiss her cause, she had a right to do either because the cause had not been submitted to the jury or judge. Houston's Adm v. Thompson's Adm., 87 Mo.App. 63; Atkinson v. Carter, 101 Mo.App. 477; Hansley v. Peck, 13 Mo. 587. (2) The judgment of affirmance was rendered at the October term, but the motion for a new trial was overruled at the December term. And the appeal granted and time for filing bill of exceptions fixed during December term. And bill thereafter filed within the time so allowed, will be considered as if it were filed at the same term in which the trial took place, because the judgment is not final until the motion for new trial is overruled. Warren v. Railroad, 122 Mo.App. 256; State ex rel v. Smith, 104 Mo. 419; Thomas v. Thomas, 64 Mo. 353.
Johnson, Houts, Marlatt & Hawes for respondent.
(1) The petitioner having failed and refused to prosecute her appeal from the probate court, the circuit court was compelled by the Statute to affirm the judgment. R. S. 1899, sec. 1557. (2) Perfecting the appeal does not constitute prosecution of it. The appellant must appear and try the case to avoid affirmance. Kane v. Tuohy, 80 Mo.App. 352-3; Holloman v. Railroad, 92 Mo. 286; Williams v. Lewis, 47 Mo.App. 659; Chadbourne v. Hogeman, 7 Mo.App. 561. (3) Appellant has saved no exception to the action of the court in refusing leave to take a nonsuit or dismiss her action, because no term bill of exceptions was filed at the term. State v. Larew, 191 Mo. 196; State v. Taylor, 134 Mo. 136; Hurt v. King, 24 Mo.App. 596; Smith v. Baer, 166 Mo. 392; Pace v. Roberts, 103 Mo.App. 668; Crossland v. Admire, 118 Mo. 91; Schwoerer v. Christopel, 64 Mo.App. 85; Kidder v. Wright, 72 Mo.App. 378; Breed v. Hobart, 187 Mo. 145. (4) The court ruled correctly in refusing to allow appellant to take a nonsuit or dismiss her action. Butler v. Pierce, 115 Mo.App. 40; Benoist v. Murrin, 48 Mo. 48; St. John's Lodge v. Callender, 4 Ired. 342; R. S. 1899, sec. 286; Cloud v. Wylie, 29 Ark. 30.
--This appellant, Mary Howard, claiming to be the widow of Laclede J. Howard, deceased, filed on May 12, 1905, in the probate court of the city of St. Louis, her petition under section 106 of the Revised Statutes of 1899, for an appropriation out of the assets of the estate in lieu of the grain, meat and other provisions allowed a widow and family of a deceased husband for a year's support by section 105 of the statutes. This petition was heard on January 13, 1906, and judgment rendered against the petitioner, who took an appeal to the circuit court. The cause came on to be heard in the latter court on October 31, 1906, and among other motions and pleas the petitioner filed an application for a continuance on the ground of surprise and the absence of material witnesses, setting out what she believed said witnesses would testify. This application having been overruled, appellant asks leave to take a nonsuit. This request was refused by the circuit court and an exception saved, and then appellant moved said court for leave voluntarily to dismiss her cause of action, but the motion to dismiss was likewise overruled on November 3, 1906, and an exception saved. Thereupon, on the same day, the circuit court entered a judgment affirming the judgment of the probate court for failure of appellant to prosecute her appeal from the latter court. The judgment of the circuit court recites that the petitioner refused to proceed in the case after her motions for a voluntary nonsuit and to dismiss had been overruled. All these proceedings were had at the October term, 1906, of the circuit court of the city of St. Louis, and at the same term and within four days from the rendition of the judgment against the petitioner, she filed a motion for a new trial in which, among other things, she complained of the refusal of the court to permit her voluntarily to dismiss her cause of action and also of the action of the court in rendering judgment affirming the judgment of the probate court. A motion in arrest was likewise filed on the same day (November 5, 1906) that the motion for new trial was filed. Those motions were continued until the ensuing or December term, 1906, and during said term, to-wit, on January 7, 1907, both were overruled; the appellant excepting to the orders. On the same day an appeal was allowed to this court and time given for the filing of a bill of exceptions until February 10, 1907. The bill of exceptions was filed February 2, 1907, which was a day of the regular December term, 1906.
1. It is contended in behalf of respondent that we are precluded from reviewing appellant's exceptions because no term bill of exceptions was signed and filed at the October term 1906, when the original exceptions were taken. On the contrary it is insisted for appellant that if she filed motions for new trial and in arrest at said October term, and those motions were continued over to the next term and then disposed of, and a bill of exceptions filed at said later term, the carrying over of the two motions for new trial and in arrest, carried over the exceptions from the October term. It is certain the motion in arrest did not have this effect, because such a motion does not reach those exceptions which must be preserved in a bill of exceptions, but goes only to errors, imperfections and deficiencies which appear on the face of the record without being made part of the record by a bill. Therefore we shall inquire concerning the effect on appellant's exceptions of the continuance of the motion for new trial. The statutes (secs. 727, 728) say that whenever in the progress of the trial of a civil suit, either party shall except to the opinion of the court and write his exception, if the same is true, the court shall sign and allow it; and that such exception may be written and filed at any time within the term of court at which it was taken. Further, that all exceptions taken during the progress of a trial before the same jury, shall be embraced in the same bill of exceptions. Those statutes, if enforced literally, would require all exceptions taken during the progress of a cause to be saved by the filing of a bill of exceptions at the term when they were taken, without regard to whether a motion for new trial was filed and disposed of during said term, or continued to the succeeding one. But many exceptions cannot be reviewed on appeal unless the trial court's attention is called to them in a motion for new trial, and an opportunity afforded for their correction before the appeal is allowed. [Cowen v. Railroad, 48 Mo. 556; Vineyard v. Matney, 68 Mo. 105; Ray v. Thompson, 26 Mo.App. 431.] In Walter v. Scofield, 167 Mo. 537, 547, 67 S.W. 276, it was said no errors except those apparent in the record proper will be reviewed unless they are called to the attention of the court of first resort in a motion for new trial. For this reason, and also in view of the provision in section 728 (R. S. 1899) that all exceptions taken during the progress of a trial of a cause, or taken before the same jury, shall be embraced in the same bill of exceptions, the statutes have been construed to mean that if a motion for new trial is carried over to a term subsequent to the trial and then overruled, the losing party may preserve for review, by bill of exceptions filed at said subsequent term, certain species of exceptions taken at the trial term and particularly those taken during the trial. [Riddlesbarger v. McDaniel, 38 Mo. 138; Henze v. Railroad, 71 Mo. 636, 644.] Respondent concedes this much, but contends that if a motion for new trial is carried over, a bill of exceptions filed at a subsequent term can save only such exceptions as were taken during the actual trial of the cause before a court or jury, and not exceptions taken to rulings on motions and other orders and rulings which did not occur in the course of the trial. Hence the argument is, with reference to the present cause, that as the only exceptions appellant took, or rather the only ones insisted on now, were the orders overruling her motions for nonsuit and dismissal, and as these exceptions did not occur on the trial of the cause (for in fact there was no trial) they could not be preserved by a bill filed at the December term. This point is one of difficulty and we have been unable to find a case in which it was directly decided. In Hurt v. King, 24 Mo.App. 593, the point in decision was that if the motion for new trial was overruled at the trial term, but a motion in arrest continued over, a bill of exceptions filed during the term when the motion in arrest was overruled, would not preserve exceptions taken at the trial term. As already said, this is the law, for the reason that the purpose of a motion in arrest is not to call attention to exceptions...
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