Borders v. Niemoeller
| Decision Date | 15 May 1951 |
| Docket Number | No. 28253,28253 |
| Citation | 239 S.W.2d 555 |
| Parties | BORDERS v. NIEMOELLER. |
| Court | Missouri Court of Appeals |
Ninian M. Edwards and N. Murray Edwards, of St. Louis, for appellant.
Raymond I. Harris, Rex McKittrick, and Robert S. Goldenhersh, all of St. Louis, for respondent.
This is an action by plaintiff, Augusta Borders, to recover her dower, with damages, in certain real estate situate in St. Louis County. The defendant is Adolph F. Niemoeller, the owner of the land at the time of the commencement of the action.
Tried to the court alone, the finding and judgment was for plaintiff, but for what she regarded as an inadequate recovery. Considering herself to be aggrieved by the judgment, she gave notice of appeal, not only from the judgment itself, but also from the order of the court correcting its findings of fact nunc pro tunc as respects the time from which she should recover damages for the deforcement of her dower. The appeal went to the Supreme Court upon the ground that the case was one involving title to real estate, but upon review of the matter the Supreme Court held that it was without jurisdiction and ordered that the cause be transferred here.
Plaintiff was married to Harry L. Borders on November 25, 1914. An estate of inheritance in the real estate in question, 3408 Lucas and Hunt Road, was thereafter acquired by Borders on May 16, 1923.
On October 8, 1924, plaintiff was awarded a decree of divorce from Borders. With the marriage having been dissolved because of the fault or misconduct of her husband, it followed that she did not thereby lose her right to dower in any of his property to which dower would attach, including the property in question of which he had become seized during the marriage. Sec. 469.200, R.S.Mo.1949; North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061; Crenshaw v. Crenshaw, 276 Mo. 471, 208 S.W. 249; Murawski v. Murawski, 240 Mo.App. 533, 209 S.W.2d 262.
On June 2, 1925, Borders conveyed the property by warranty deed to one Bertha C. Hinze, who subsequently conveyed the property to Harry L. Reyburn and Grace K. Reyburn, his wife. By successive transfers the property was eventually acquired by defendant, Adolph F. Niemoeller, who, as we have pointed out, was the owner of it at the time the action was brought. Plaintiff did not join with Borders in the conveyance to the Reyburns, and as a consequence her dower interest was not in anywise prejudiced or affected. Sec. 469.190, R.S.Mo.1949.
On October 2, 1925, shortly after the Reyburns had acquired the property and while they were still in possession of it, plaintiff prepared and caused to be filed of record a notice of her dower interest and served a copy of the same upon the Reyburns. Borders was alive at the time; and one of the questions in the case is whether plaintiff, in being awarded her dower with damages for its detention, was entitled to damages from the date of such notice, that is, from October 2, 1925, or only from the date of a demand which she made upon defendant after Borders' death.
So far as concerns any question of defendant's notice, not only did he have the constructive notice afforded by the recording of plaintiff's claim of dower interest, but he in fact admitted actual notice at the time of his acquisition of the property.
Borders died on January 23, 1948, whereupon plaintiff, on September 18, 1948, caused a written demand for assignment of dower to be served upon defendant, who refused to recognize her claim.
Upon the institution of this action for the recovery of plaintiff's dower, the parties stipulated that the land was not susceptible of division, which meant that dower was to be assessed upon the basis of its yearly value. Sec. 469.320, R.S.Mo.1949.
The controversy involved the question of the amount of such yearly value and of the damages to be assessed, along with the further question, as we have already pointed out, of whether damages were to be allowed from October 2, 1925, the date of the recording of plaintiff's initial notice of her dower interest, or only from September 18, 1948, the date of her demand upon defendant for the assignment of dower after her former husband's death. Under the facts of the case there was no room for any controversy over her right to an assignment of dower.
The court found that plaintiff's cause of action for assignment of dower with damages for the wrongful deforcement thereof arose on September 18, 1948, the date of her demand upon defendant; that any damages to which she was entitled were computable from that date; and that the demand or notice served upon the Reyburns on October 2, 1925, during her former husband's lifetime, had been premature and a legal nullity. Finding the yearly value of her dower interest to be the sum of $45, the court ordered that plaintiff be paid such sum on September 18, 1950, and a like sum on the same day of each year thereafter during her natural life, and that she recover as damages to the date of judgment (October 17, 1949) the sum of $45.
In compliance with the request of plaintiff's counsel, the court had prepared and filed its findings of fact upon the principal controverted fact issues in the case. In the last paragraph of such findings it had inadvertently stated that plaintiff was entitled to damages from the time of demanding her dower in 'October, 1925'. However in its declarations of law which accompanied its findings, as well as in its judgment based upon its findings, it had made it clear, as we have already shown, that plaintiff was only to have damages from September 18, 1948.
While the motion for new trial was pending the court, of its own motion, corrected its findings by striking out 'October, 1925', and inserting 'September 18, 1948'. The court then overruled the motion for a new trial, whereupon plaintiff filed a motion asking the court to set aside the order correcting the particular finding. The court stood by its previous action, and plaintiff now reaffirms her contention that the court committed error in making the correction.
Specifically her point is that the court had no power to...
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Durwood v. Dubinsky
...correct the judgment when it did because timely filed motions for new trial were pending. See Civil Rule 78.01, V.A.M.R.; Borders v. Niemoeller, Mo.App., 239 S.W.2d 555; and Ruckman v. Ruckman, Mo.App., 337 S.W.2d 100. We do not rule whether or not under the circumstances plaintiff was enti......
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...299, 300; Id., 122 Mo. 375, 22 S.W. 458; First National Bank of Stronghurst, Ill. v. Kirby, 269 Mo. 285, 190 S.W. 597; Borders v. Niemoeller, Mo.App., 239 S.W.2d 555. Compare Sando v. Phillips, Mo., 319 S.W.2d 648, 650. In return for the abolition of dower the widow has been given the right......
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...real estate located at 3825 South Benton, Kansas City, Missouri. Jurisdiction of the cause is vested in this court. Borders v. Niemoeller, Mo.App., 239 S.W.2d 555. The property involved formerly belonged to one S. Eugene Corbin, an uncle of defendant Lionel O. Corbin. Plaintiff married S. E......
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Section 15.15 Amendment of Findings
...with its conclusions of law, even if more than thirty days have passed since its entry of original findings. Borders v. Niemoeller, 239 S.W.2d 555 (Mo. App. E.D. 1951). The exercise of such power, however, is strictly within the discretion of the court. The court’s refusal to set aside a su......