Adams v. Adams
| Citation | 165 S.W.2d 676,350 Mo. 152 |
| Decision Date | 10 November 1942 |
| Docket Number | 38173 |
| Parties | Ada Adams v. Melvin Adams, Della Adams, Roy Adams, May Fowler, Pearl Cook, Clarence Adams, George Adams, Bertha Adams, Ella Adams, Hollie Adams, Opal Adams and Laura Jane Adams, Appellants |
| Court | United States State Supreme Court of Missouri |
Appeal from Scott Circuit Court; Hon. J. C. McDowell Judge.
Reversed and remanded.
Spradling & Spradling for appellant.
Appellant submits that in the opinion rendered by this court in Adams v. Adams, 156 S.W.2d 610, he was entitled to file his amended answer and recover for the improvements and amount expended on said real estate.
J Grant Frye and Gerald B. Rowan for respondent.
(1) The only judgment which the circuit court was authorized to render was a judgment correcting the fractional interest of the tenants and to give Melvin Adams a claim against the lands or the proceeds thereof for taxes not only from the time of the existence of the tenancy in common but from the time of the alleged resulting trust relationship arising from the acquisition of title to the land by his father. Adams v. Adams, 156 S.W.2d 610. (2) The fact that the Supreme Court, upon the motion of respondent Ada Adams to modify the opinion specifically directed at the uncertainty of whether the opinion and mandate required a trial or whether the judgment should be entered from the evidence and record already made, modified the opinion by changing the wording of the opinion from "the record" to "this record," shows that the Supreme Court did not contemplate a new trial. Adams v. Adams, 156 S.W.2d 610. (3) The matter complained of by appellant Melvin Adams in this appeal are matters of exception which must be by bill of exceptions predicated upon a motion for new trial, and their being no motion for new trial filed, the matters complained of therein are not preserved and the court cannot notice the same under this record as made. DeLisle v Spitler, 162 S.W.2d 854.
Clark, J. All concur except Hays, J., absent.
CLARK
An opinion on a former appeal in this case was adopted in Division Two of this court and is reported in 348 Mo. 1041, 156 S.W.2d 610.
This is a suit for partition and sale of real estate in which respondent is plaintiff and appellant is one of the defendants. On the former trial in the circuit court, appellant filed answer alleging that he had furnished the money to purchase and improve the real estate and had paid the taxes thereon for a number of years, and praying that appellant be decreed the owner by virtue of a resulting trust. In the alternative, the answer asked credit for the taxes paid. The circuit court denied appellant's claim to a resulting trust and refused credit for taxes paid by appellant prior to the death of his mother, the holder of the record title, but allowed credit for such taxes paid after that time. On appeal this court approved the ruling of the circuit court in denying appellant's claim to a resulting trust, but held that appellant was entitled to reimbursement for taxes paid before as well as after his mother's death. We also agreed with the conclusions reached by the Supreme Court of Arkansas in Walker v. Eller, 178 Ark. 183, 10 S.W.2d 14, under which appellant would also have been entitled to recover money paid by him in improving the real estate, if he had asked for same in his answer. In the opinion we said:
"He did not ask an accounting for improvements in this case, but did for taxes he had paid, . . . We hold an accounting should be made of all taxes . . . shown by this record to have been paid by appellant both before and after the mother's death in 1935."
We then stated that the case should be reversed and remanded for another reason, to wit, that the respective shares of the parties in the real estate were incorrectly stated in the judgment, and concluded the opinion with this sentence:
"The cause is reversed and remanded for further proceedings in partition not in conflict herewith."
When our mandate went to the circuit court the cause was redocketed and appellant asked leave to file an amended answer, praying reimbursement for taxes and improvements and for a lien for same. Respondent objected on the ground that our opinion and mandate did not contemplate a new trial, but only permitted the court to compute the taxes paid by appellant before his mother's death, and add them to the taxes which the record showed he paid after that time and declare a lien for the aggregate amount.
The court sustained this objection and entered judgment for partition and...
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