48 Mo. 560 (Mo. 1871), Ervin v. Brady

Citation:48 Mo. 560
Opinion Judge:WAGNER, Judge,
Party Name:ELI ERVIN, Defendant in Error, v. TERRENCE BRADY AND LUCINDA BRADY, Plaintiffs in Error.
Attorney:L. Brown, for plaintiffs in error. G. H. Green and L. Houck, for defendant in error.
Court:Supreme Court of Missouri
 
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Page 560

48 Mo. 560 (Mo. 1871)

ELI ERVIN, Defendant in Error,

v.

TERRENCE BRADY AND LUCINDA BRADY, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1871

          Error to Cape Girardeau Circuit Court.

         L. Brown, for plaintiffs in error.

         I. It does not appear that the former judgment pleaded in this cause was a decision on the merits. Hence it was no bar. ( Ridgely v. Stillwell, 27 Mo. 128; Taylor v. Larkin, 12 Mo. 103; Bell v. Hoagland, 15 Mo. 360.)

         II. Where a cause is submitted without a jury, judgment must show that all the issues have been passed upon ( Russell v. Barcroft, 1 Mo. 514; Marmaduke v. McMasters, 24 Mo. 51), and cover all the issues made by the pleadings; otherwise it is insufficient ( Downing v. Bourlier, 21 Mo. 149), and warrant the conclusions of law and judgment rendered thereon. ( Pearce v. Burnes, 22 Mo. 577; Pearce v. Roberts, 22 Mo. 582; State v. Ruggles, 23 Mo. 339.)

         G. H. Green and L. Houck, for defendant in error.

         No finding of the facts by the Circuit Court was necessary. ( Judge v. Booge, 47 Mo. 545.)

         OPINION

         WAGNER, Judge,

         This action was brought by the plaintiff to have dower in certain lands admeasured and set off to the defendant as the widow of her former husband, one Masterson, deceased. The plaintiff claimed an interest in the premises by purchase from some of the ?eirs. The defendant's answer contained two counts: the first set up an interest under the homestead law, and the second a former judgment between the plaintiff's grantor and the defend??nt, on a proceeding to have dower assigned in the same land.

         The court found against the defendant on the first count, and ?? her favor on the second count, and held that the former judgment was an effectual bar, and thereon rendered judgment in her favor.

         The counsel for the defendant then made a motion to amend the judgment so as to incorporate in it certain findings of fact. This the court overruled, and that constitutes the only error complained of.

         We know of no law requiring the court to specifically...

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