Alt v. Dines

Citation227 Mo. 418,126 S.W. 1035
PartiesALT v. DINES et al.
Decision Date12 April 1910
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Marie Alt against William C. Dines and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Chester H. Krum, for appellants. Thos. S. Meng and S. T. G. Smith, for respondent.

VALLIANT, J.

The only items as of the record proper shown by the abstract are the petition, the demurrer, and the answer. An amendment to the abstract shows that the affidavit for an appeal was filed in due time and appeal allowed.

The petition is in the nature of a bill in equity to set aside a deed to real estate, on the ground that it was obtained by fraud on the part of defendant; it also prays for an accounting of rents and profits. Under the index heading of "Record aliunde" the abstract sets out the evidence, and at the conclusion of the evidence is this statement: "December 14, 1905, the court entered a decree for respondent. Within four days thereafter, at the same hour, to wit, December 15, 1905, appellant filed a motion for a new trial, and on December 15, 1905, filed a motion in arrest of judgment. These motions were overruled January 20, 1906. On February 1, 1906, the motion for a new trial was reinstated by the court of its own motion, the order overruling it being set aside, and on the last day of the December term, 1905, the court set aside the decree of December 14, 1905, and took the case farther under advisement. April 30, 1906, the court entered a decree for respondent. May 4, 1906, at the same term, and within four days after the decree, the appellant filed the following motion for a new trial, to wit." The motion, which is there set out in full, assigns, besides other grounds, the action of the court, after setting aside the judgment of December 14th, in taking the cause under advisement and rendering another judgment, without a new trial or opportunity to defendant to be heard. Then follows a motion in arrest. Then follows this statement: "These motions were overruled September 20, 1906, and appellants only excepted. June 16, 1906, Virgil Rule, theretofore appointed referee to state an account, filed his report; the appellants excepted to it June 19, 1906, at the same term, and these exceptions were overruled September 20, 1906, and the appellants duly excepted. September 20, 1906, the court entered a decree for respondent. September 24th, at the same term, and within four days after said decree, appellants filed the following motion for a new trial" — which motion is also copied in...

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22 cases
  • State ex rel. Kinealy v. Hostetter
    • United States
    • Missouri Supreme Court
    • 21 Abril 1937
    ... ... of the Supreme Court. Peper v. Peper, 241 Mo. 260; ... Fishback v. Prock, 242 S.W. 962; Haven v. Ry ... Co., 155 Mo. 216; Galy v. United Rys. Co., 286 ... Mo. 503; Paving Co. v. Realty & Imp. Co., 270 Mo ... 698; Porter v. Railroad Co., 28 S.W.2d 1035; Alt ... v. Dines, 227 Mo. 418; Hurley v. Kennally, 186 Mo. 225 ...          Geers & Geers for respondents ...          (1) The ... opinion of the St. Louis Court of Appeals, finding that the ... testimony in this case is not sufficient to establish an ... estoppel is borne out by the ... ...
  • Willis v. Willis
    • United States
    • Missouri Court of Appeals
    • 28 Diciembre 1954
    ...and does not permit rendition of a new judgment without retrial [Davis v. Lynn, 354 Mo. 1181, 193 S.W.2d 609, 610(2); Alt v. Dines, 227 Mo. 418, 126 S.W. 1035, 1036(3); Hurley v. Kennally, 186 Mo. 225, 85 S.W. 357, 358(3, 4)]. None of the terms 'reopen', 'correct', 'amend' or 'modify', as u......
  • Ginnochio v. Illinois Central R. Co.
    • United States
    • Missouri Court of Appeals
    • 24 Enero 1911
    ...S.W. 47; Coleman v. Roberts, 214 Mo. 634, 114 S.W. 39; Booth v. St. Louis, I. M., etc., R. Co., 217 Mo. 710, 117 S.W. 1094; Alt v. Dines, 227 Mo. 418, 126 S.W. 1035. See, Stone v. St. Louis Union Trust Co., 150 Mo.App. 331, 130 S.W. 825.] The suit is prosecuted by the administrator of one, ......
  • Gosnell v. Gosnell
    • United States
    • Missouri Court of Appeals
    • 6 Noviembre 1959
    ...another judgment should not have been rendered without retrial. Davis v. Lynn, 354 Mo. 1181, 193 S.W.2d 609, 610(2); Alt v. Dines, 227 Mo. 418, 126 S.W. 1035, 1036(3); Hurley v. Kennally, 186 Mo. 225, 85 S.W. 357, 358(3, 4); Willis v. Willis, Mo.App., 274 S.W.2d 621, 624(2). See also Jones ......
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