Blanchard v. Dorman

• Decision Date: 01 July 1911
• Citation: 139 S.W. 395,236 Mo. 416
• Parties: BLANCHARD v. DORMAN et al.
• Court: Missouri Supreme Court

139 S.W. 395

236 Mo. 416

BLANCHARD v. DORMAN et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

Rehearing Denied July 12, 1911.

1. APPEAL AND ERROR (§ 671)—ABSTRACT— CONTENTS—ISSUANCE OF WRIT OF ERROR.

Rev. St. 1899, § 813, provides that, within the time and in the manner prescribed by the appellate court rules, plaintiff in error shall file a printed abstract of the record and deliver a copy to defendant in error, who, if dissatisfied, may file and serve an additional abstract, and, if the opposite party shall not concur therein, he shall specify his objections in writing and file them with the clerk, serving a copy on the other party. Thereupon the clerk shall have brought up a certified transcript of the part of the record in dispute. Held, that since the statute and the court rules require defendant in error to bring to the court's attention any part of the record omitted, where the Supreme Court's record showed that a writ of error was duly issued and returned to it as provided by statute, defendant in error cannot object to the consideration of the case on appeal because such facts were not shown in the abstract of the record.

2. EXCEPTIONS, BILL OF (§ 38)—TIME FOR FILING.

Since under Rev. St. 1899, § 864, the Supreme Court cannot consider exceptions not decided by the trial court, objections must be taken and exceptions saved at the time any matter of exception occurs at the trial, except where a motion for new trial is filed at the same term at which the exception is taken and continued until another term, so that where no bill of exceptions was filed at the term at which an interlocutory decree for partition was rendered and commissioners were appointed, and the time for filing the bill was not extended beyond the term by leave or otherwise, and no motion for a new trial was filed at that term, all exceptions taken therein were abandoned.

3. APPEAL AND ERROR (§ 671) — QUESTION PRESENTED — BILL OF EXCEPTIONS — CONTENTS.

Under Laws 1903, p. 105, making it unnecessary in order to review any action of the trial court that any motion, etc., be copied into the bill of exceptions provided the bill contain a direction to copy the same and it is copied into the record and sent up, matters raised by motions for a new trial and in arrest of judgment cannot be considered on appeal, where such motions are not copied into the bill of exceptions, and there is no direction to the clerk to copy them in the record, though they appear in full, in another part of the abstract.

4. VENUE (§ 80)—CHANGE OF VENUE—PLEADINGS —AMENDMENT AFTER CHANGE.

Under Rev. St. 1899, § 826, providing that upon change of venue the cause shall be docketed in the court to which it is certified and "proceeded in and determined as if it had originated therein," and section 824, providing that after such change any pleading found insufficient may be amended as in other cases, after change of venue, on motion of defendant in partition suit at any circuit court, the petition may be amended to show that a part of the land is in another range than that alleged in the original petition.

5. VENUE (§ 80) — CHANGE — PROCEEDINGS AFTER CHANGE.

The transcript of an action in partition filed in the county to which the venue had been changed should have been corrected by supplying the lost petition before the change of venue and the court to which the venue was changed properly refused to make the correction.

6. PLEADING (§ 420)—OBJECTIONS—DEPARTURE —WAIVER.

Defendant waived any right to raise on appeal the question of departure of a third amended petition from the original petition by answering the amended petition and going to trial on the issues raised by it.

7. APPEAL AND ERROR (§ 295)—MOTION FOR NEW TRIAL—NECESSITY.

Since the allowance of an attorney's fee in a partition suit requires no formal motion and the request therefor need not be made before judgment or the filing of a motion for new trial, the motion for new trial need not show such requests in order to review its allowance, though the allowance was included in the same entry as the final judgment.

8. APPEAL AND ERROR (§§ 270, 671)—EXCEPTIONS IN TRIAL COURT—BILL OF EXCEPTIONS—ALLOWANCE OF ATTORNEY'S FEE.

The reasonableness of an allowance of an attorney's fee will not be reviewed, where no exception was taken to the order of allowance, and a motion to set aside the order and retax the fee was not copied into the bill; it being necessary to bring the matter into the bill of exceptions.

Error to Circuit Court, Cass County; N. M. Bradley, Judge.

Action by Mollie Belle Blanchard against Allen Dorman and others. Judgment for plaintiff, and defendants bring error. Affirmed.

This suit was instituted in the circuit court of Henry county to partition certain lands in that county, described as follows:

"Thirty-six acres part east half lot two, northwest quarter; seven acres part southeast fourth of the northwest quarter; twenty-seven acres part northwest fourth of the northwest quarter—all in section three, township forty-one, range twenty-six.

"One hundred and sixty acres southeast quarter section seven; eighty acres west half of the southwest quarter of section eight; forty acres the southwest quarter of the northwest quarter of section sixteen—all in township forty-two, range twenty-six."

The petition was an ordinary one for statutory partition, in which it was stated, in substance, that Rebecca J. Dorman died intestate in said county on the 17th day of April, 1889, seised of said lands and leaving as her only heirs at law her daughters, Lula E. Davis, Virginia Dorman Golden, Mollie B. McNeel, and her sons, the defendants Allen Dorman, George W. Dorman, Sterling P. Dorman, and John B. Dorman; that the said Lula E. Davis had conveyed to the other heirs named her undivided interest as heir at law of Rebecca Dorman, in said lands; that after said conveyance and on June 17, 1900, Virginia Dorman Golden died intestate, leaving the plaintiff her sole heir at law; and that the plaintiff and defendants were tenants in common and in possession each of an undivided one-sixth of said lands. The prayer was for partition in kind and general relief. This petition has been the subject of much discussion. The transcript made by the clerk of the circuit court of Henry county on change of venue to Cass county purported to contain a copy of it in which the 280 acres of land in sections 7, 8, and 16, in township 42, were described as being in range 26.

The original petition was stated in the transcript to have been lost. The original deed was in court and offered in evidence after the entry of the interlocutory decree of partition and described the land as being in range 27, which is the description incorporated in the abstract of record of the plaintiffs in error. No process was issued or service had in this case until July 8, 1902, when the defendant Allen Dorman filed in the Henry circuit court a petition of his own against all the other parties in the first-mentioned case for the partition of the same land, after which service was had in both cases and, at the January term, 1903, of the Henry circuit court, the case in which Allen Dorman was plaintiff was by order of the court, without objection from either party, consolidated with the original case brought by Mrs. Blanchard under the number of the latter, which was 128 on the docket, and in the same order it was provided "that plaintiff's counsel in each of the above-entitled causes have fee allowed in said cause, equally divided."

An amended petition was filed by Mrs. Blanchard in the Henry circuit court on May 13, 1903, in which the tract of land first described in the original petition was described as "tract No. 2, known as the old Wash Hancock homestead in Clinton township, Henry county, Missouri, * * * containing seventy-one acres, being the land conveyed by George W. Hancock to Rebecca J. Dorman by deed dated November 27, 1880, recorded on page 566 of Deed Book 30 of the deed book records of Henry county, Missouri." This description mentions neither section, township, nor range. The other tract is described as "tract No. 1, the Dorman farm in Honey Creek township, Henry county, Missouri, described as the southeast quarter of section No. seven (7), and the west half of the southwest quarter of section No. eight (8), and the southwest fourth of the northwest quarter of section No. sixteen (16), all in township No. forty-two (42), of range No. twenty-seven (27) containing in all 280 acres, more or less." This petition further stated in substance that from the death of Mrs. Dorman each of her heirs was the owner of an undivided one-seventh interest of the lands described, and recognized the interest of the others, until about the 1st day of March, 1900, when Mrs. Davis sold her said interest to the defendants George W. Dorman, Sterling P. Dorman, Mollie B. McNeel, and John B. Dorman, and Mrs. Golden for $1,200, pursuant to which sale Mrs. Davis and her husband, Charles W. Davis, conveyed said interest to the parties named. It was further stated that the defendants Sterling P. Dorman, John B. Dorman, Allen Dorman, and George W. Dorman had been in possession of said lands during the years since and including 1900, and collected rents of which they claimed to have applied a portion to the payment of the amount promised to be paid to Mrs. Davis for her interest, of which she and her husband claimed that a large portion still remained due and unpaid for which they were entitled to a vendor's lien on the land. It will be noted that the conveyance of Mrs. Davis and husband, pleaded in this petition, did not include Allen Dorman, so that his interest is stated to be an undivided 1/7 of the land, and the interest of each of the other owners, plaintiff and defendants, an undivided 6/35, and that division could not be made in kind. The prayer was for an accounting by the Dormans with respect to the rents and profits, that the...