Aull v. Day

• Court: Missouri Supreme Court
• Writing for the Court: Macfarlane, J.
• Citation: Aull v. Day, 133 Mo. 337, 34 S.W. 578 (Mo. 1896)
• Decision Date: 10 March 1896
• Parties: Aull et al. v. Day et al., Appellants

34 S.W. 578

133 Mo. 337

Aull et al. v. Day et al., Appellants

Supreme Court of Missouri, First Division

March 10, 1896

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

Affirmed.

Phillips Stewart, Cunningham & Eliot for appellants.

(1) Under section 2246, Revised Statutes, 1889, as amended in Session Laws of 1889, at page 70, the interlocutory judgment in partition determines the rights of the parties and is beyond the control of the court making the same after the term at which such judgment is rendered. U.S. v. Bailey 9 Peters, 272; Schulter v. Bockwinkle, 19 Mo 647; Jones v. Evans, 80 Mo. 565; Loring v. Groomer, 110 Mo. 632; White v. Mitchell, 60 Texas, 164; Williams v. Wells, 62 Iowa 740; sec. 2206, R. S. 1889; Freeman on Judgments, sec. 34; McCourtney v. Fortune, 42 Cal. 387; Ryan v. Wallace, 43 Cal. 625; Shepherd v. Rice, 38 Mich. 556; Randles v. Randles, 67 Ind. 434; Railroad v. Railroad, 94 Mo. 542; Freeman on Cotenancy and Partition [2 Ed.], secs. 527, 516. (2) After judgment that partition be made, ascertaining the interests of the parties, order of sale, report of sheriff acting as special commissioner, and order of confirmation, it is too late to permit an amendment of the petition changing the issues, and the entry of a new or modified interlocutory judgment. If the court had any power to change its record, such action should have been by setting aside all proceedings after the filing of the petition. Lilly v. Menke, 126 Mo. 190. (3) The entry of a judgment nunc pro tunc should not be made, except to confirm or carry out some judicial act done at the time, not then entered of record, or erroneously entered. Ross v. Ross, 83 Mo. 100. (4) Judgments or proceedings in the courts entered or taken at the instance of certain parties to the cause can not be complained of by them at any subsequent stage of the proceedings. And no appeal lies at their instance. 2 Am. and English Encyclopedia of Practice, p. 90. (5) A judgment entered by consent of parties or upon facts submitted to the court agreed upon by the parties, becomes binding upon them irrespective of the action of the court. And such judgment can not be set aside or appealed from by any of the parties concerned. 2 Am. and Eng. Encyclopedia Practice, p. 99; Johnson v. Shed, 21 Pick. 225.

William Aull for respondents.

(1) The nephews and nieces living at the time of the intestate's death take per capita and the children of the deceased nephew and deceased nieces take per stirpes the shares of their deceased parents. R. S. 1889, sec. 4469; Copenhaver v. Copenhaver, 78 Mo. 55; Walsh v. Walsh, Prec. in Ch. 54; Stanley v. Stanley, 1 Atk. 455; Lloyd v. Tench, 2 Ves. Sr. 213; Bowers v. Littlewood, 1 P. Wms. 594; Miller's Appeal, 40 Pa. St. 387; Adams v. Caruthers, 6 Ga. 39; Hallett v. Hare, 5 Paige, 316; Kelly v. Maguire, 15 Atk. 555; 4 Kent's Com. 391; 2 Williams on Ex'rs [7 Am. Ed.], p. 907; Dutoit v. Doyle, 16 Ohio St. 400; Stallworth v. Stallworth, 29 Ala. 76; Preston v. Cole, 64 N.H. 459; Blake v. Blake, 85 Ind. 65; Krout's Appeal, 60 Pa. St. 380; 2 Minor's Inst., pp. 472, 474; Davis v. Rowe, 6 Rand. 355; 1 Woerner's Am. Law of Administration, pp. 142, 148, 149; 2 Bl. Com. 217; Crump v. Faucett, 70 N.C. 345; Doane v. Freeman, 45 Me. 113; Jones v. Barnett, 30 Tex. 637. (2) In partition proceedings the judgment quod partitio fiat is only an interlocutory judgment. It is the judgment that the partition be made firm and effectual forever which is the principal or final judgment. Parkinson v. Caplinger, 65 Mo. 294; Gudgell v. Mead, 8 Mo. 54; McMurtry v. Glasscock, 20 Mo. 432; 1 Black on Judgments, sec. 17; 5 Bac. Abr. 292; Freeman on Judgments [4 Ed.], secs. 8, 29, 32, 251; Holloway v. Holloway, 97 Mo. 628; Turpin v. Turpin, 88 Mo. 337; Holloway v. Holloway, 103 Mo. 274; Akers v. Hobbs, 105 Mo. 124; Hiles v. Rule, 121 Mo. 248; Bobb v. Graham, 89 Mo. 200; Murray v. Yates, 73 Mo. 13. (3) An interlocutory judgment or decree, made in the progress of a cause, is always under the control of the court until the final decision of the suit and it may be modified or rescinded upon sufficient grounds shown at any time before final judgment, though it be after the term in which the interlocutory sentence was given. 1 Black on Judgments, sec. 308; Miller v. Justice, 86 N.C. 26; Akers v. Hobbs, 105 Mo. 124; Davis v. Roberts, 1 Sm. & Mar. Ch. 543; Stephens v. Hume, 25 Mo. 349; Ivory v. Delore, 26 Mo. 505; Pockman v. Meat, 49 Mo. 345; Warren v. Williams, 25 Mo.App. 22; Forder v. Davis, 38 Mo. 107; Elliott's Ap. Proc., secs. 83 and 119; Hart v. Steedman, 98 Mo. 452; Bryant v. Russell, 127 Mo. 433. (4) The facts in the petition were admitted by some defendants and denied by others. The court heard the evidence and properly ascertained and declared the facts in the interlocutory order or judgment, from which the conclusion, as to the aliquot part of each heir, was drawn. The error in this conclusion being patent on the face of the interlocutory judgment, it was by the court, before final judgment, corrected so as to conform to the law. The elements of a consent judgment are wholly foreign to the record in this cause.

OPINION

Macfarlane, J.

Suit for the partition of real estate in Lafayette county. Maria Pomeroy died in August, 1892, intestate, seized of the land in suit. She left surviving her as her sole heirs at law three nephews and three nieces who were living, and the children of one nephew and three nieces whose parents died before the death of intestate. Appellants are of the latter class of grandnephews and grandnieces.

The petition stated the death of the said Maria Pomeroy, described the land, and named the heirs, stating their respective relationship to deceased and interests in the land as follows:

"Plaintiffs further state that the said plaintiffs, James Aull, Robert Aull, Mary F. Aull, Wilson Aull, and Maria P. Collier are nephews and nieces of the said Maria Pomeroy, deceased, and are each entitled to the one fifteenth part of said estate. That the said Eliza J. McFadden is a niece of said Maria Pomeroy, deceased, and is entitled to the one twelfth part of said estate. That the said defendants, John Aull, Joseph Aull, Alfred Aull, Maria P. Hendrickson, and Elizabeth Aull are greatnephews and greatnieces of said Maria Pomeroy, deceased, and are each entitled to the one sixtieth part of said estate. That the said plaintiffs, Sarah E. Hendren, Mary I. Hart, Margaret L. Mattis, and Eliza A. Bicking are greatnieces of said Maria Pomeroy, deceased, and are each entitled to the one forty-eighth part of said estate. That the said plaintiff, Robert A. Tripple, is a greatnephew, and said plaintiff, Mary E. Patton, a greatniece of said Maria Pomeroy, deceased, and are each entitled to the one twenty-fourth part of said estate. That the said defendants, Lawrence W. Day, Frank P. Day, Harry H. Day, and Anna C. Truesdale are greatnephews and greatniece of said Maria Pomeroy, deceased, and are each entitled to the one twentieth part of said estate." The prayer was that the court "determine, declare, and decree the rights, titles, and interests of said parties," and order a sale of the land if partition in kind was found impracticable.

All the defendants were brought into court either by personal service or by publication, and all answered. The substance of the answers was an admission of the allegations of the petition.

On April 22, 1893, the cause was heard and judgment of partition and order of sale were entered. The court, in its judgment, found and declared the rights and interests of the parties as they were stated in the petition.

The sale of the land was made and reported to the court at the December term, 1893. On the same day a motion was filed by one of the parties to the proceeding asking for a modification and amendment of the record and the order therein in which the interests of the parties were found and declared, so that the finding and ascertainment of their respective rights may be as follows:

"That the plaintiffs, James Aull, Robert Aull, Mary F. Aull, Maria P. Collier, and Eliza J. McFadden are each entitled to the undivided one tenth part of said real estate and the proceeds thereof. That the defendants, John Aull, Joseph Aull, Alfred Aull, Maria P. Hendrickson, and Elizabeth Aull are each entitled to the undivided one fiftieth part of said estate. That the said plaintiffs, Sarah E. Hendren, Mary I. Hart, Margaret L. Mattis, and Eliza A. Bicking are each entitled to the undivided one fortieth part of said real estate. That the plaintiffs, Robert A. Tripple and Mary E. Patton, are each entitled to the undivided one twentieth part of said real estate. That the defendants, Lawrence W. Day, Frank P. Day, Harry H. Day, and Anna C. Truesdale are each entitled to one undivided one fortieth part of said real estate."

The court made an order approving the sale and directing deeds made to the purchaser, but directed the sheriff not to pay out the proceeds of the sale except according to their respective rights and interests in the same as hereafter found and determined by the court. The order then proceeds:

"And it having been suggested to the court that an error has been made in ascertaining the interests of the parties to this suit, to the said real estate, and the proceeds of the sale thereof, and that such interests ascertained by the court in the order of sale made in this course, are inconsistent with the facts found in the same, no order of distribution of the proceeds of said sale is made until such time as the motion to correct said order of sale in that regard may be heard, and the sheriff is ordered to retain the proceeds of said sale in his hands until otherwise directed."

At the same term of court, the motion was heard...