Bloyd v. Hartman

• Citation: 223 S.W. 676
• Decision Date: 24 July 1920
• Docket Number: No. 15749.,15749.
• Parties: BLOYD v. HARTMAN
• Court: Court of Appeal of Missouri (US)

223 S.W. 676

BLOYD v. HARTMAN

No. 15749.

St. Louis Court of Appeals. Missouri.

July 24, 1920.

Error to Circuit Court, Scotland County; N. M. Pettingill, Judge.

"Not to be officially published."

On application of William Hartman, administrator of Elizabeth A. Dalton, deceased, the probate court made an order for sale of real estate, which was approved by the circuit court on appeal, and Annie Bloyd brings error. Reversed and remanded, with directions.

E. Scofield and E. R. McKee, both of Memphis, for plaintiff in error.

J. E. Luther and J. M. Jayne, both of Memphis, for defendant in error,

REYNOLDS, P. J.

This is a writ of error sued out from the judgment of the circuit court of Scotland County, affirming the order of the Probate Court, authorizing a sale of real estate. Originally the cause was appealed to our court but while pending here the appeal was dismissed by the appellant and a writ of error sued out.

As the writ was sued out within a year from the rendition of the judgment in the case, it was applied for and granted within due time. (See section 2056, Revised Statutes 1909.)

In Hill v. Keller, 157 Mo. App. 710, loc. cit. 718, 139 S. W. 523, it is held that when an appeal has been dismissed by an appellate court, a writ of error may be sued out within one year after the rendition of the judgment by the trial court. The fact that the appeal previously taken had been dismissed by appellant, now plaintiff in error, in no manner concludes the right to a writ of error.

But it is objected that as an order for sale of real estate is not a final judgment, no writ of error lies, Fenix v. Fenix's Adm'r, 80 Mo. 27, being relied on. It is true no writ of error lies to the Probate Court, put the statute, section 289, R. S. 1909, expressly provides for an appeal on an order for the sale of real estate. This carries the order into the circuit court. When that court passes on it, its judgment is a final judgment from which a writ of error lies. Section 2054, R. S. 1909, specifically provides for the issue of writs of error "upon any final judgment or decision of any circuit court," and declares them "writs of right, and shall issue of course, out of the Supreme Court and Courts of Appeals," etc.

In Gale v. Michie, 47 Mo. 326, it is held that where the overruling of a motion is a final and complete disposition of the subject-matter of a cause in that court, the action of the court may be reviewed. See also Tutt v. Boyer, 51 Mo. 425.

Turning to the action of the circuit court in approving the application of the administrator for an order of sale of the real estate, we are unable to agree to that approval. It appears that 84 acres of land belonging to the estate were in...