Riley v. Sherwood

• Citation: 155 Mo. 37,55 S.W. 877
• Parties: RILEY et al. v. SHERWOOD et al.
• Decision Date: 20 February 1900
• Court: United States State Supreme Court of Missouri

55 S.W. 877

155 Mo. 37

RILEY et al. v. SHERWOOD et al.

Supreme Court of Missouri, Division No. 2.

February 20, 1900.

APPEAL AND ERROR — REVERSAL — REMAND — PROCEEDINGS IN TRIAL COURT — ENTRY OF JUDGMENT.

Where a cause was reversed and remanded, with directions to the circuit court "to proceed in accordance with the views herein expressed," and the opinion stated, "On the evidence, we think the circuit court should have sustained a demurrer to the evidence," the action of the circuit court, when the case came up for disposal, in entering judgment for the defendant, was proper, where the plaintiff did not claim any new or different evidence from that introduced at the previous trial.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by J. M. Riley and others against C. C. Sherwood and others to set aside the will of Mrs. E. A. Sherwood. A judgment in favor of plaintiffs was reversed on a former appeal, and the cause remanded (45 S. W. 1077), where a judgment in favor of defendants was entered in accordance with the opinion. From an order overruling plaintiffs' motion to set aside the judgment, they appealed, which was dismissed. On rehearing. Affirmed.

J. D. Johnson and Geo. Robertson, for appellants. W. W. Fry and W. M. Williams, for respondents.

BURGESS, J.

In an opinion filed by us in this case on January 22, 1900, we held that for failure of appellants to comply with the rules of this court, by filing a complete abstract of the record, — the appeal being by what is called the "short form," under the provisions of section 2253, Rev. St. 1889, — the judgment should be affirmed, which was done accordingly. Plaintiffs now present a motion for rehearing on that ruling, and upon reconsideration we are satisfied that we erred in affirming the judgment upon the ground stated in the opinion, and that the only course open to us in such circumstance was to dismiss the appeal or continue the case. We therefore sustain the motion and withdraw that opinion, and, as plaintiffs insist that whatever imperfections there were in their abstract were cured by the abstract of defendants, we will dispose of the case upon that theory.

This is a statutory contest of the will of Mrs. E. A. Sherwood, deceased, upon the grounds of the want of mental capacity to make a will, and undue influence in its execution, by some of the beneficiaries named in the will. The case was before this court on a former appeal by defendants, and will be found reported in 144 Mo. 354, 45 S. W. 1077. It was then held that there was no substantial evidence tending to support either of said grounds, and that the trial court should have sustained a demurrer to plaintiffs' evidence, and that it committed error in failing to do so; the court saying, "And for these errors the judgment is reversed and the cause remanded, with directions to the circuit court to proceed in accordance with the views herein expressed." After the mandate from this court was received by the clerk of the circuit court of the county from which the appeal was taken, and the case again came up to be disposed of, the defendants asked the court to enter up judgment establishing the will in contest to be the last will and testament of the testatrix, Mrs. E. A. Shootman, deceased, in accordance with the opinion and mandate of the supreme court; and, over the objection and exception of plaintiffs, judgment was rendered in accordance with such request. Thereafter, and in due time, ...