23 Mo.App. 337 (Mo.App. 1886), Murphy v. De France

Citation:23 Mo.App. 337
Opinion Judge:HALL, J.
Party Name:NANCY MURPHY, Plaintiff in Error, v. JAMES M. DEFRANCE ET AL., Defendants in Error.
Attorney:O. D. JONES, for the plaintiff in error, who is also appellant. JAMES M. DEFRANCE, for the defendants in error, also appellants.
Case Date:November 22, 1886
Court:Court of Appeals of Missouri
 
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Page 337

23 Mo.App. 337 (Mo.App. 1886)

NANCY MURPHY, Plaintiff in Error,

v.

JAMES M. DEFRANCE ET AL., Defendants in Error.

Court of Appeals of Missouri, Kansas City.

November 22, 1886

APPEAL from Adair Circuit Court HON. ANDREW ELLISON, Judge.

Judgment rendered on " supplemental answer" reversed. Judgment originally entered affirmed; and all costs, including costs of appeal, adjudged against the defendants.

Statement of case by the court.

The petition in this case alleged that the plaintiff was in possession, as owner in fee-simple, of sixteen acres of land described in the petition to which the defendants made some claim, and asked that the defendants be summoned to show cause why they should not bring an action to try their title. The preliminary order was issued, and the defendants filed their answer, in which they denied the allegations of the petition except that they claimed title to the said land.

A trial was had, with a jury, of the issue thus made. The court instructed the jury that the only issue before them was as to the possession by the plaintiff of the land described in the petition; the court refused, though asked by the defendants so to do, to instruct the jury to find the character of the plaintiff's possession, whether said possession was that of a doweress or owner. The jury returned a verdict finding that the plaintiff had possession of five and one-half acres of the said land, and had not possession of the balance of it. The court rendered judgment, as is shown by the abstract of the record filed by the defendants, requiring the defendants to bring suit to try their title to the said five and one-half acres of the land.

The verdict was returned and the judgment was rendered on the fourteenth day of April, 1885. On the twenty first day of April, 1885, the defendants filed a motion to quash the verdict of the jury, which motion the court overruled. On the last mentioned day the court permitted the defendants, against the plaintiff's objections, to file a supplemental answer. The supplemental answer alleged that the plaintiff held possession of the five and one-half acres of land as her dower, and that the defendants owned the remainder, which interest only did they claim. The said answer also pleaded a former judgment of the circuit court, setting apart the five and one-half acres of land as the plaintiff's dower, and decreeing the title to the balance of the land to be in the defendants, and ordering that the defendants be placed in the possession of said balance of the land...

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