Burdett v. Dale

Citation69 S.W. 480,95 Mo. App. 511
PartiesBURDETT et al. v. DALE.
Decision Date24 June 1902
CourtCourt of Appeal of Missouri (US)

1. Plaintiffs appealed from a circuit judgment, and, without filing the necessary papers in the appellate court, afterwards sued out a writ of error from the latter upon the judgment appealed from. Held, that the writ of error was improvidently issued pending the appeal, and should be dismissed.

2. An appeal is not to be considered abandoned because appellant fails to file the required transcript or record in the appellate court in due time.

3. An appeal has the effect to transfer to the appellate court the jurisdiction of the cause, as distinguished from the jurisdiction over the record therein.

4. The filing of a brief on the merits upon writ of error does not waive a motion to dismiss on the ground that the writ was issued while an appeal was pending in the same cause.

(Syllabus by the Judge.)

Error to circuit court, Monroe county; David H. Eby, Judge.

Action by Ellen Burdett and others against Victoria V. Dale. From the judgment the plaintiffs bring error. Dismissed.

J. H. Whitecotton, for plaintiffs in error. W. T. Ragland, for defendant in error.

BARCLAY, J.

This proceeding began in the probate court of Monroe county. It is founded on a motion, under the administration law, for partial distribution of the estate of J. R. Dale, deceased. The moving parties are legatees under his will. They are named as plaintiffs. Defendant is the widow of deceased, and his administratrix with the will annexed. The petition or motion of plaintiffs is based on representations that each plaintiff, as legatee, is entitled to one seventh of one-half of the net personal estate of the deceased, and that by the annual settlement of defendant as administratrix a balance of $1,346.78 appears; that no debts are unpaid, — in consequence of which a distribution is prayed on the giving of refunding bonds, as required by law. Rev. St. 1899, §§ 239, 240. Defendant, by an answer to the motion, admitted the balance in her hands, but disputed the right of plaintiffs to the amounts specified by them. She set up a special claim for $650 of the personal estate as property of hers which came to her husband by virtue of his marriage with her, wherefore she claimed that sum on distribution of his estate, and she also asserted a claim to one-half of the remainder of the personal estate by reason of her election under section 4518, Rev. St. 1889, now section 2939 Rev. St. 1899. On a hearing in the probate court it was adjudged, June 16, 1898, that Mrs. Dale receive the amount of her claim of $650 in addition to the share due her as widow. It is not necessary to quote fully the judgment or order on that point. It was substantially in favor of defendant as to her claim above recited. Plaintiffs appealed to the circuit court, where a trial anew was had. The result was a finding, December 23, 1898, in substance the same as in the probate court. But the form of the court's conclusion was as follows, as appears from the abstract in this court prepared by the learned counsel for plaintiffs in error (omitting the caption and signature thereto): "At this day come the parties herein by their respective attorneys, and this cause, coming on to be heard, is submitted to the court; and the court, having considered the same, and after hearing the evidence produced by each side, and argument of counsel in behalf of each party, doth find as follows, to wit: `The court finds the facts to be that at the time of the marriage of deceased to Victoria V. Dale the said Victoria V. Dale was the owner in her own right of the sum of six hundred and fifty dollars ($650) in money, and that said marriage occurred prior to the year 1875, and that said sum of money came to said husband in right of said marriage.'" An appeal was duly taken by plaintiffs from the foregoing order. When the cause reached the St. Louis court of appeals, the appeal was dismissed by the court, January 16, 1900, presumably because of the incompleteness of the last order in the trial court. February 1, 1900, the circuit court, on motion of plaintiffs, by counsel, entered a judgment, as of December 23, 1898, on full findings, which it is unnecessary to repeat, by which it was adjudged and decreed that defendant was entitled to $650 on account of her claim aforesaid, and also to one half of the net residue of the estate, and that the remaining half be distributed to plaintiffs severally on their giving refunding bonds as required by law. We are not quoting the final order literally. It was substantially a preliminary order of distribution in ordinary form, after determining in her favor the issue as to Mrs. Dale's special claim. After a motion for new trial without success, plaintiffs took an appeal, February 2, 1900, to this court, and filed their appeal bond February 10, 1900, in vacation, pursuant to leave granted in term to do so. That appeal was...

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    • United States
    • Missouri Court of Appeals
    • November 8, 1932
    ...91, 94; Case v. Smith, 215 Mo. App. 621, 257 S. W. 148, 150; Werckmann v. Taylor, 112 Mo. App. 365, 370, 87 S. W. 44; Burdett v. Dale, 95 Mo. App. 511, 514, 69 S. W. 480; Oberkoetter v. Luebbering, 4 Mo. App. "The cases above cited, however, except Hydraulic Press Brick Co. v. Bambrick Bros......
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