Blanchard v. Dorman

• Decision Date: 12 July 1911
• Citation: Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395 (Mo. 1911)
• Parties: MOLLIE BELLE BLANCHARD v. ALLEN DORMAN et al., Plaintiffs in Error
• Court: Missouri Supreme Court

139 S.W. 395

236 Mo. 416

MOLLIE BELLE BLANCHARD v. ALLEN DORMAN et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

July 12, 1911

Error to Cass Circuit Court.-- Hon. N. M. Bradley, Judge.

Affirmed.

S. P Dorman, G. W. Sloan and John A. Gilbreath for plaintiffs in error.

(1)"Petition for partition shall be filed in the circuit court of the county in which such lands, tenements or hereditaments lie."R. S. 1909, sec. 2650.(2)"The statute directing in what counties partition suit is to be brought is mandatory, and not simply directory."Johnson v. Detrick,152 Mo. 255.(3) Cass circuit had no jurisdiction of the subject-matter.The court in Cass county could not originally entertain jurisdiction over lands in Henry county, and only acquires jurisdiction of certain specific lands on a change of venue, and not to all and singular the lands in Henry county after change of venue.Hope v. Blair,105 Mo. 85;Johnson v Detrick,152 Mo. 243;Bray v. Marshall,66 Mo 123;Snitjer v. Downing,80 Mo. 588.Even though Fields v. Malony,78 Mo. 172, has been criticised and overruled in a sense by Scheitd v. Crecelius,94 Mo. 322, yet both are in harmony with the above proposition and with the case at bar.(4)"It is competent for a party to confer jurisdiction on a court of his person, but he can neither by consent nor conduct confer on a court jurisdiction of the subject-matter; the law alone confers this jurisdiction."Bookowitz v. Guthrie,99 Mo.App. 310;Parker v. Zeisler,139 Mo. 298;Johnson v. Detrick,152 Mo. 243.(5) Abandoned pleadings: their sole and only purpose.Tichnor v. Voorhies,46 Mo. 110;Cockerill v. Stafford,102 Mo. 57;Rubelman v. McNichol,13 Mo.App. 584;Kortzendorfer v. St. Louis,52 Mo. 204;Breckenkamp v. Rees,3 Mo.App. 585;Machine Co. v. Pierce,5 Mo.App. 575;Corley v. McKeag,9 Mo.App. 38;Young v. Woolfolk,33 Mo. 110;Rand v. Grubbs,26 Mo.App. 591.(6) A new description of the land changes the cause of action.Bricken v. Cross,163 Mo. 449;Bricken v. Cross,140 Mo. 166;Lilly v. Tobbein,103 Mo. 477;Hall v. School Dist.,36 Mo.App. 21;Courtney v. Blackwell,150 Mo. 271;Flanders v. Cobb,51 Am. St. Rep. 429;Stevenson v. Mudgett,34 Am. Dec. 158;Carpenter v. Gockin,21 Am. Dec. 566;Laughlin v. Leigh,226 Mo. 620.(7) The petition governs and not intent of pleader.Sturges v. Botts,24 Mo.App. 287;Powell v. Shipps,85 Mo.App. 467;Brennan v. McMenanny,78 Mo.App. 122.(8)The court having no jurisdiction, an appeal or writ of error prosecuted from final judgment in petition brings up for review all questions in the cause.Aull v. Day,133 Mo. 337;Ess v. Griffith,128 Mo. 50;Tarkio v. Clark,186 Mo. 294;Collier v. Lead Co.,208 Mo. 247.(9)"Consent of parties cannot give jurisdiction where the law has not conferred it and the question of a court's jurisdiction of the subject-matter is never settled until it is settled right."Shohoney v. Railroad,223 Mo. 649;Davidson v. Ins. Co.,226 Mo. 1;State v. Muench,225 Mo. 210.(10) This litigation was controversial and the parties were genuine adversaries contending for substantial rights.Therefore the taxation and assessment of the fee of $ 1000 for attorney of the plaintiff as costs in the case to be apportioned between plaintiff and defendants in the partition suit was illegal, wrong, improper, unjust and excessive and not taxable against defendants.Liles v. Liles,116 Mo.App. 413;Donaldson v. Allen, 213 Mo. 301.

R. T. Railey and Peyton A. Parks for defendant in error.

(1) There is nothing before this court for review, except the record proper.Nothing can be considered in the way of exception which is not either set out or called for in the bill of exceptions.Betzler v. James,227 Mo. 387;Barnham v. Shelton,221 Mo. 71;Reed v Colp,213 Mo. 588;State v. Handley,144 Mo. 118;Ryan v. Growney,125 Mo. 480;Nichols v. Stevens,123 Mo. 96;State v. Catlin,98 Mo. 672;Coy v. Landers,146 Mo.App. 419;State v. Leichtman,146 Mo.App. 296.(2) Questions relating to the original petition, as well as to the first and second amended petitions, and all proceedings up to the time of the rendition of the interlocutory decree herein at the May term, 1906, cannot properly be considered as a part of the record in this cause, for the reasons following.1.Because none of said pleadings are set out or called for in defendants' bill of exceptions.2.The filing of the third amended petition was an abandonment of all of the other petitions and the latter, by reason thereof, no longer remain a part of the record without again being introduced in evidence and by being set out or called for in the bill of exceptions.No bill of exceptions having been filed during the May term, 1906, of the circuit court of Cass county, there is nothing for review before this court concerning said proceedings: Ingwerson v. Railroad,205 Mo. 335;Walker v. Railroad,193 Mo. 472;Bobb v. Bobb,89 Mo. 418.3.Neither the original nor the first or second amended petitions, nor the motion to dismiss or to correct the record were ever called for or incorporated in any bill of exceptions and filed in the court below at any time, much less during the term at which said proceedings were had, or prior to the rendition of the interlocutory decree referred to in the record.Therefore, no bill of exceptions having been filed at the same term at which the proceedings occurred, this court cannot review any action of the circuit court in reference to said matters.State v. Holman,132 S.W. 696;State v. Lawler,220 Mo. 26;State v. Jackson,209 Mo. 398;State v. Harroun,199 Mo. 258;State v. Goehler,193 Mo. 177;State v. Larew,191 Mo. 192;State v. Miller,189 Mo. 673.4.Because defendants have attempted to have this cause reviewed upon a writ of error after the appeal was dismissed.A writ of error, even if properly sued out and due notice given, can only bring up for review the final judgment rendered in the cause.Hence, as no bill of exceptions was taken or filed in respect to any matters which occurred prior to the rendition of the interlocutory decree, there is nothing for review before the court in regard thereto.Padgett v. Smith,205 Mo. 124;Glass Co. v. Peper,96 Mo.App. 595;Kroeger v. Dash,82 Mo.App. 332.(3) Since the defendants have failed to show that the bill of exceptions was signed and filed within the time required by law, there is nothing for review before this court except the record proper, if the latter can be considered on the record presented.Milling Company v. St. Louis,222 Mo. 306;Pennowfsky v. Coerver,205 Mo. 136;Harding v. Bedoll,202 Mo. 631;Harris v. Wilson,199 Mo. 414;Everett v. Butler,192 Mo. 564.(4) The land is located in Henry county, Missouri, and the partition suit was commenced in the circuit court of that county.If the land was misdescribed, or if other land not included in the original petition was mentioned herein, the circuit court of Henry county would undoubtedly have had jurisdiction to authorize an amended petition, containing a correct description, to be filed.If the circuit court of Henry county had jurisdiction of the subject-matter and of the person, on change of venue to Cass county it transferred to the circuit court of the latter county the same jurisdiction which formerly existed in the Henry county circuit court.Stearns v. Railroad,94 Mo. 322;Hughes v. McDivitt,102 Mo. 84;Spurlock v. Railroad,104 Mo. 660;Real Estate Co. v. Lindell,133 Mo. 395.(5)(a) An amended petition can be filed in court where cause is pending on change of venue.Hughes v. McDivitt,102 Mo. 83.(b)The case of Fields v. Maloney,72 Mo. 172, holding to the contrary, has been expressly overruled in this State.Stearns v. Railroad,94 Mo. 322;Hughes v. McDivitt,102 Mo. 84;Spurlock v. Railroad,104 Mo. 660;Real Estate Co. v. Luedell,133 Mo. 395.(6)(a) Even though the original petition in this cause did not properly describe the land, yet the trial court had the power to permit an amendment in the petition so as to correctly describe the land in controversy.Callaghan v. McMahaw,33 Mo. 111;Sage v. Tucker,51 Mo.App. 336;Spurlock v. Railroad,104 Mo. 658;Timber Co. v. Cooperage Co.,112 Mo. 383;Menefee v. Beverforden,95 Mo.App. 105;Callaghan v. Miller,33 Mo. 111.(c) Where a petition misdescribes the judgment, but the answer admits its existence and properly describes it, the misdescription of the petition is not a valid objection to its amendment.Menefee v. Beverforden,95 Mo.App. 105.(7)(a) By answering over, after the overruling of their motion to strike out plaintiff's last amended petition, on the ground that it was a change in the cause of action from the prior petition, and going to trial upon the merits of the issues raised by the last amended petition and the answer thereto, appellants waived such objection, even though it had been preserved in a timely bill of exceptions.Hubbard v. Slavens,218 Mo. 616;Flowers v. Smith,216 Mo. 98;White v. Railroad,202 Mo. 561;Hudson v. Cahoom,193 Mo. 557;Spurlock v. Railroad,104 Mo. 658;Real Estate Co. v. Lindell,133 Mo. 395, overrulingFields v. Maloney,78 Mo. 172, and approving Stearns v. Railroad,94 Mo. 317;Hughes v. McDivitt,102 Mo. 77;Spurlock v. Railroad,104 Mo. 658.(8)(a) Defects in petition are cured by answers and cross-bills, under the common law rule of "express aider."Grace v. Nesbitt,109 Mo. 15;Hughes v. Carson,90 Mo. 402;Garth v. Caldwell,72 Mo. 629;Menefee v. Beverforden,95 Mo. 105;Cockrell v. Warner,14 Ark. 358.(9) All pleadings and proceedings in partition of real estate shall be had as in ordinary civil actions.The bill of exceptions must be filed at the term of the court at which the alleged errors occurred, or subsequently within...