Allen v. Hickam

• Decision Date: 30 March 1900
• Parties: ALLEN, Appellant, v. HICKAM, et al
• Court: Missouri Supreme Court

56 S.W. 309

156 Mo. 49

ALLEN, Appellant, v. HICKAM, et al

Supreme Court of Missouri, First Division

March 30, 1900

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

O Guitar, J. C. Gillespy, James W. Cosgrove and John Cosgrove for appellant.

(1) The report of the commissioners was not a final settlement of the matter in controversy and did not bind the parties until filed and confirmed by the court. At any time prior to such confirmation plaintiff had a right to take a nonsuit. Stephens v. Hume, 25 Mo. 349; Ivory v Delore, 26 Mo. 505; Worthington v. White, 42 Mo. 462; Mayer v. Old, 51 Mo.App. 214; Wood v Nortman, 85 Mo. 298; 1 McQuillin's Pl. and Prac., sec. 654. (a) If the report of the commissioners be considered a special verdict a nonsuit should have been allowed notwithstanding. 6 Am. and Eng. Ency. of Pl. and Prac., p. 838; Turley v. Barnes, 67 Mo.App. 237. (2) The report of the commissioners should have been set aside because: (a) The witnesses were not sworn. Wolfe v. Hyatt, 76 Mo. 156. (b) Chainman, W. W. Trent, was not sworn and was interested in having the line, so agreed upon by commissioners, established as the true one. Appellant protested at the time. (c) Flagman, James T. Hickam, brother of respondent and real party in interest, was not sworn. R. S. 1889, sec, 8317. (3) The trial court erroneously considered the report of the commissioners a final determination of the rights of the parties, whereas it was merely interlocutory and could not bind the parties until confirmed and judgment entered thereon. If the commissioners be regarded in the light of arbitrators the court had the right to vacate the award. R. S. 1889, sec. 405 et seq. If it be viewed as a reference the exceptions, under the showing made, should have been sustained and the report set aside. R. S. 1889, secs. 2154-2155. (4) After the commissioners were appointed the court had jurisdiction over them and had power to set aside their report for cause. Turley v. Barnes, 67 Mo.App. 237. (5) The commissioners were bound by the express terms of the stipulation. Caruth-Byrnes H. Co. v. Wolter, 91 Mo. 484; Reeves v. McGlochlin, 65 Mo.App. 542. The clause in the stipulation which provides that judgment shall be rendered in accordance with the report of the commissioners does not sustain the action of the trial court. Its mere insertion or omission is of no legal consequence and in no sense precludes appellant from contesting the validity of the report. Wolfe v. Hyatt, supra.

W. M. Williams for respondents.

(1) The court properly declined to permit plaintiff to take a nonsuit after the report of the commissioners or arbitrators had been made and filed. 2 Am. and Eng. Ency. of Law (2 Ed.), 563; Haskell v. Whitney, 12 Mass. 47; Galbreath v. Rogers, 45 Mo.App. 324. (2) There was no error in the refusal of the court to investigate the correctness of the survey made by the commissioners or arbitrators, or to open up the inquiry, whether the line located by them was the true line. That was the question submitted for decision to said commissioners or arbitrators. Their judgment upon that point was not open to review. Bennett v. Russell, 34 Mo. 524; Cochran v. Bartle, 91 Mo. 636; Taylor v. Scott, 26 Mo.App. 249; 2 Am. and Eng. Ency. of Law (2 Ed.), 672. (3) The objection that the arbitrators were not sworn, was waived by the plaintiff in error by appearing and going to trial without requiring an oath to be administered. If the witnesses had not been sworn, the waiver of that defect under the same circumstances would have been equally conclusive. Newcomb v. Wood, 97 U.S. 581; Maynard v. Frederick, 61 Mass. 247; Cochran v. Bartle, 91 Mo. 636; Grafton Quarry Co. v. McCully, 7 Mo.App. 580; 2 Am. and Eng. Ency. of Law (2 Ed.), 639; Fox v. Hazelton, 27 Mass. 277. (4) It was entirely competent for the trial court, without the aid of a statute, to submit the location of the disputed line, by consent of the parties litigant, to the decision of arbitrators or commissioners, and to enter judgment upon the stipulation, in accordance with said report. Newcomb v. Wood, 97 U.S. 581; Gates v. Russell, 17 Johns. Rep. 462; Creen v. Patchen, 13 Wend. 294; Hecker v. Fowler, 2 Wall. 123; N. Y. & C. Railroad Co. v. Myers, 18 How. 246; McCall v. McCall, 15 S.E. 348.

BRACE P. J. Robinson, J., absent.

OPINION

BRACE, P. J.

This is an action in ejectment instituted in the circuit court of Cooper county to recover possession of a strip of land containing about sixteen 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 co-terminous proprietors, and the dispute is as to the location of the boundary lines 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 not in possession of any land belonging to the plaintiff the judgment shall be entered in favor of the defendants and against the plaintiffs 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 lime stone rock 20 x 8 x 8; and at the middle of said section they set a lime stone rock 12 x 8 x 8, and at the quarter section corner on the east they found set in a cottonwood stump a lime stone 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 said section 13, township 48, range 15.

"Said commissioners further report to the court that the defendants are not in possession of any lands belonging to the plaintiff according to the line so located by these commissioners, and under said stipulation of the parties aforesai...