Allen v. Hickam

• Decision Date: 30 March 1900
• Citation: 156 Mo. 49,56 S.W. 309
• Parties: ALLEN v. HICKAM et al.
• Court: Missouri Supreme Court

56 S.W. 309

156 Mo. 49

ALLEN v. HICKAM et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1900.

ARBITRATION AND AWARD—SUBMISSION—EVIDENCE.

1. Where the issues, by agreement of parties and order of court, were submitted to adjudication of commissioners, there was no error in refusing a nonsuit after report of such commissioners, since Rev. St. 1899, § 639, provides that nonsuit shall not be allowed after submission of a suit to the court sitting as a jury, and such commissioners became, as to the issues submitted to them, the court sitting as a jury.

2. Where commissioners were appointed by the court, by agreement of parties, to ascertain and determine the location of a boundary line, evidence that the survey and the location of such line were incorrect was properly rejected, since such evidence tended to prove a mere error in judgment, and not to establish any legal ground of relief.

3. Where commissioners were appointed to survey and establish a disputed boundary line, and plaintiffs were present, and made no objection that such commissioners were the guests of one of the defendants, and employed a surveyor as chainman, who ran out the disputed line claimed by defendants, and that they employed a brother of one of the defendants as flagman, and that the witnesses before such commissioners were not sworn until after the result of the survey was ascertained, such facts

will not justify the vacation of the commissioners' report, since they do not show that the result was effected thereby.

Appeal from circuit court, Saline county; Richard Field, Judge.

Action by John Allen against Samuel Hickam and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This is an action in ejectment instituted in the circuit court of Cooper county to recover possession of a strip of land containing about 16 acres, in said county, described in the petition by metes and bounds. The petition is in the usual form, and the answer a general denial. After a trial in the Cooper circuit court, which resulted in a verdict for the plaintiff, which was set aside and a new trial granted, the venue was changed to the Saline county circuit court. The parties are coterminous proprietors, and the dispute is as to the location of the boundary line between them. After the case reached the Saline county circuit court, the parties entered into the following agreement in that court: "It is hereby stipulated that the judge of this court shall appoint three competent persons, each of whom shall be a county surveyor or an ex county surveyor of some county in this state, as commissioners, and that such commissioners so appointed shall meet upon the land in controversy on the 9th day of September, 1896, and hear such testimony as the parties hereto may desire to present, and examine such witnesses as may be presented by the parties, and shall examine any records, papers, or documents exhibited to them or necessary for their information, and shall run the line in controversy, and shall mark out and locate the true line between the south half and the north half of section 13, township 48, range 15, and establish suitable monuments showing the line so located by them; and such commissioners shall report to this court at the next term thereof the line located by them, and whether or not the defendants are in possession of any land belonging to the plaintiff according to the line so located by them; and, if they shall report that they are in possession of any such land belonging to the plaintiff, judgment shall be rendered in favor of the plaintiff for the recovery of such land and the costs of this suit; and, if they shall report that they are in possession of any land belonging to the plaintiff, the judgment shall be entered in favor of the defendants, and against the plaintiff herein, for costs of this suit. It is further agreed that reasonable compensation shall be taxed as costs in this case, to be allowed by this court, to such commissioners, and shall be paid as other costs may be adjudged. It is further stipulated that the line so established shall be the line between the said north half and south half of said section, and shall be established as an agreed line, binding upon the parties hereto and their grantees, and the parties hereto bind themselves to conform their possession to the line so fixed, and to surrender any land belonging to the other party, of which they may be in possession, without any further suit. It is further agreed that the commissioners may adjourn for satisfactory cause to any other day or date, but shall be compelled to report to this court at the next term thereof."

Thereupon the court appointed B. D. Weedin, T. C. Lea, and S. L. Bay commissioners under the agreement, who, having qualified and discharged their duties as such, at the next term of court made report of their proceedings, verified by their affidavits, as follows: "To the Honorable the Circuit Court of Saline County, Mo.: The undersigned commissioners, appointed by the judge of this court in accordance with the stipulation of parties filed in this cause, respectfully report that, before proceeding to the performance of their duties as such commissioners under said stipulation, they made affidavit to faithfully and fairly discharge their duties as such commissioners to the best of their ability, and their said affidavit is hereto attached; and that, by agreement of parties, they assembled in the city of Boonville, on the 16th day of September, 1896, and John Cosgrove, Esq., attorney for plaintiff, and W. M. Williams, Esq., attorney for defendants, appeared before them, and explained the respective claims of the parties; and thereafter, on the 17th day of September, 1896, the commissioners met upon the land in controversy, and the plaintiff and defendants appeared before them at said time in their own proper persons, and said commissioners did hear such testimony as the parties desired to submit to them, and did examine such witnesses as were presented by the parties, and also examined all records, papers, and documents exhibited to them or necessary for their information, and did run the line in controversy, and did mark out and locate the true line between the south half and the north half of said section 13, township 48, range 15, and did establish suitable monuments showing the line so located by them as follows, to wit: They set at the quarter section corner of section 13, township 48, range 15, on the west, a limestone rock 20" × 8" × 8", and at the middle of said section they set a limestone rock 12" × 8" × 3", and at the quarter section corner on the east they found set in a cottonwood stump a limestone rock with a cross on top, and they report the line so located by them as the true line between the south half and the north half of...