Nickey v. Leader

• Decision Date: 01 June 1911
• Parties: NICKEY et al. v. LEADER.
• Court: Missouri Supreme Court

138 S.W. 18

235 Mo. 30

NICKEY et al. v. LEADER.

Supreme Court of Missouri, Division No. 1.

June 1, 1911.

1. APPEAL AND ERROR (§ 590) — ABSTRACT OF RECORD — ADDITIONAL ABSTRACT — PURPOSE.

When the filing of the original bill of exceptions completes the record of the circuit court, and a supply bill of exceptions is filed in place of the original lost bill, it relates back to the filing of the original and stands as and for the original, and, if the supply bill accords with the abstract, the parties should be entitled to show such fact, and, for this purpose, their additional abstract should be received.

2. APPEAL AND ERROR (§ 590) — SCOPE OF ADDITIONAL ABSTRACT — NECESSITY OF BRIEF.

Where the sufficiency of the abstract in certain particulars is challenged by a brief filed, and where the original abstract is so defective as to authorize the sustaining on the suggestion to dismiss the bill, the defects averred in the brief cannot be answered by amendments contained in an additional abstract.

3. APPEAL AND ERROR (§ 586) — ABSTRACT OF RECORD — MATTERS INCLUDED — OVERRULING APPEAL.

Where an appeal is in this court on the short form — that is, a certified copy of the judgment and of the order granting the appeal — it will not be dismissed because the abstract does not show the order, or that the case has been docketed in this court.

4. EVIDENCE (§ 41) — JUDICIAL NOTICE — LAWS OF THE STATE.

The court will take judicial notice of the law fixing an April term of court for Butler county.

5. EVIDENCE (§ 41) — JUDICIAL NOTICE — TERMS OF COURT.

The court will take judicial notice of the dates of the beginning or terms of the circuit court.

6. COURTS (§ 66) — ELECTIONS — TERMS — ADJOURNMENT.

Where the court once meets, any adjournment to a later day makes such day a part of the same term, and the same should be true where the sheriff under order of the judge, under Rev. St. 1909, § 3869, adjourns the term.

7. APPEAL AND ERROR (§ 937) — PRESUMPTIONS — TAKING AND EFFECTING APPEAL — TIME OF TAKING APPEAL.

An abstract recited a judgment rendered April 18, 1907, and by leave of court a motion for new trial on April 20th, which was overruled on April 24th, and that on April 25th the plaintiff filed affidavit and bond "for appeal, which said bond is approved, and the appeal is granted to the Supreme Court and plaintiffs are granted 90 days in which to appear and file bill of exceptions herein." Held, that as the abstract precluded the idea of a special term, and showed that the court acted upon a day after the legal beginning of one term and before the legal beginning of another regular term, it would be presumed that the affidavit for appeal was filed and the appeal granted either during the term of the judgment or the term at which the motion was overruled, and that the court was in the regular or adjourned session of the term first named.

8. APPEAL AND ERROR (§ 582) — ABSTRACT OF RECORD — SCOPE — SUFFICIENCY — EVIDENCE.

In a case at law, it is only necessary that the abstract call attention to such matters as bear upon the points urged for reversal, unless a demurrer to the evidence is interposed, and that point is pressed on appeal, in which case all the evidence in the case is necessary to present that question; and, in a case presenting the sole question as to the propriety of giving or refusing certain instructions, the abstract would be sufficient if it recited that there was evidence pro and con upon the question involved in the instruction, but in all cases the court will require questions and answers, if such are necessary to the understanding of the evidence.

9. APPEAL AND ERROR (§ 582) — REVIEW — TRIAL DE NOVO — EVIDENCE.

On appeal and trial de novo in equity cases, the court requires all the evidence, but, even in such cases, it does not require the questions or answers, and, if it be stated in narrative form, it is sufficient.

10. APPEAL AND ERROR (§§ 582, 1009) — REVIEW — TRIAL DE NOVO.

On appeal in equity cases, the court requires all the evidence because the appeal is practically a trial de novo, barring consideration for the judgment of the chancellor, whose judgment is under no circumstances binding upon the conscience of this court.

11. TENANCY IN COMMON (§ 15) — MUTUAL RIGHTS — ADVERSE POSSESSION.

It is a general rule that the possession of one tenant in common is the possession of all; yet, if one of the tenants is in actual possession claiming the title as against his cotenant and the world, the statute of limitations will inure to the benefit of such claimant.

12. APPEAL AND ERROR (§ 1008) — REVIEW — FINDINGS — TRIAL WITHOUT A JURY.

The findings of the court, in a case at law tried without a jury, upon matters of fact stand in this court the same as the verdict of a jury, and, if there is evidence to sustain the findings, they will not be disturbed.

13. TENANCY IN COMMON (§ 15) — ADVERSE POSSESSION — EVIDENCE — SUFFICIENCY.

Evidence in ejectment by one claiming as tenant in common with defendant, who pleaded adverse possession for 10 years, held to sustain a general finding and judgment for the defendant.

14. TENANCY IN COMMON (§ 15) — ADVERSE POSSESSION — EVIDENCE.

To support a claim by one tenant in common that his possession was adverse to his cotenants, the evidence must be clear and pointed.

Appeal from Circuit Court, Butler County.

Action by Leander F. Nickey and another against C. H. Leader. Judgment for defendant, and plaintiffs appeal. Affirmed.

E. R. Lentz, for appellants. Ernest A. Green, for respondent.

GRAVES, P. J.

Plaintiff sues in ejectment for a small tract of land near the city of Poplar Bluff, in Butler county, Mo. The petition is in the usual form. Damages are charged to be $100 and monthly rents and profits are fixed by the petition at $5 per month. The answer is the 10-year statute of limitations and a general denial. Reply a general denial. Points are made as to the sufficiency of the abstract. It will suffice at this point to state that there was a trial before the court without the intervention of a jury and a general finding and judgment for the defendant. From this judgment the plaintiff has appealed. The points as against the sufficiency of appellant's abstract we take first.

1. There has been tendered an additional abstract of record and with it an application for permission to file. This application, together with the tendered additional abstract, was taken with the case, so that the court has reserved the right to pass upon such application and additional abstract at this time. This additional abstract so tendered is dual in character, and both parts thereof deserve attention. In the first place, there is presented the abstract of a record of the circuit court supplying a lost bill of exceptions; and, secondly, there are presented certain amendments to the abstract of record as first pointed out and filed, which amendments go to matters other than the order supplying the alleged lost bill of exceptions. We gather it that the bill of exceptions in the case had been misplaced or lost, but that a copy thereof was in existence. Whilst this situation prevailed, the printed abstract of the record was prepared. Respondent filed his additional abstract of record, and in it suggests that there is no bill of exceptions on file in the case, but charges that there is pending and undetermined a motion asking the circuit court to supply the bill of exceptions. Respondent then suggests certain things in the proposed supply bill of exceptions, which does not appear in the abstract of record. The motion to supply the bill of exceptions and all the proceedings thereon were taken after the first abstract of record was filed here.

This question is not strongly urged here by the respondent, but we take it that, even if it were, there would be no substance therein. When the original bill was filed, the record of the case was complete. When the supply bill was filed, it related back to the filing of the original and stood as and for the original, and this additional abstract in this regard only supplies a matter not in existence at the time the first was printed. Of course, counsel take chances in printing an abstract of record without there being on file a bill of exceptions, but, if the supplied bill of exceptions accords with their abstract, the parties should be entitled to show such fact. As to this point, the additional abstract should be, and is, received and considered.

The second question is not of such easy solution. Respondent in his brief filed challenges the sufficiency of the printed abstract in certain particulars, and by the proposed amendments these suggestions are met. This we have held cannot be done. In the case of Harding v. Bedoll, 202 Mo., loc. cit. 637, 100 S. W. 642, after reviewing our former cases on the subject of supplemental abstracts, we said: "The foregoing seems to be the rule as to supplemental abstracts of record. To say the least, they should not be filed without leave of court, and, if so filed, will not be considered. We will add, further, that, if for any reason the original is so faulty in stating material facts of record as to authorize the sustaining of suggestion to dismiss the appeal or writ of error, no leave should be granted after the opposite party has served his brief or other writing calling attention to the defects. To hold otherwise would, as Judge Gantt practically says, place a premium upon negligence in the preparation of abstracts." The amendments offered in this case were tendered to meet the objections in a brief filed by respondent. Upon this question we think the Bedoll Case properly states the rule. There is then left for consideration the fact as to whether or not the abstract of record unamended is sufficient, for under the authority of the Bedoll and subsequent as well as prior cases a supplementary abstract should not be permitted after challenge has been made, where the original is so...