Casler v. Chase

• Decision Date: 26 February 1901
• Citation: 160 Mo. 418,60 S.W. 1040
• Parties: CASLER et al. v. CHASE.
• Court: Missouri Supreme Court

60 S.W. 1040

160 Mo. 418

CASLER et al. v. CHASE.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

APPEAL — REVIEW — FAILURE TO SAVE EXCEPTIONS — PLEADING JUDGMENT — CORRECTION BY MOTION — EXCESSIVE DAMAGES — STIPULATIONS.

1. No exceptions being saved to the court's action in overruling motions for new trial and in arrest, only such errors as appear on the face of the record proper can be noticed.

2. Defect in the petition of an infant suing by guardian, in that it does not allege that the guardian was ever appointed or qualified as such, is cured by an allegation in the answer to that effect.

3. A judgment will not be reversed because the names of the parties in whose favor it is rendered are not set out in full, as the defect may be corrected on motion.

4. A judgment rendered by consent or stipulation should be accorded the same force as other judgments, and it is no objection thereto that the damages exceed the amount justified by the petition.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Ejectment by John H. Casler, Sr., and John H. Casler, Jr., by his guardian, against David Chase. From a judgment for plaintiffs, defendant appeals. Affirmed.

Miller Bros., for appellant. Sheetz & Sons, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of the S. E. ¼ of section 19, township 57, of range 23, in Livingston county. The following facts were agreed upon, and reduced to writing: "It is admitted: That Martha Casler, formerly Martha J. McReeves, is the common source of title. That she departed this life on the ___ day of ___, 1892, in the county of Livingston, and state of Missouri, leaving a will, which is hereby considered in evidence. That plaintiff John Casler and the said Martha Casler were married on the ___ day of ___, 18___, and that the said plaintiff Casler was her husband, and the plaintiff John Casler was their child, and is now living, aged about seven or eight years. That said Martha Casler bought the premises in suit on February 2, 1890, as shown by the county record, while she was the wife of said John Casler, and filed her deed for record February 11, 1890, in the recorder's office of Livingston county, Mo. That she used said premises in connection with the northwest quarter of 19-57-23, which adjoins the premises in suit, and altogether constituted her homestead, unless Mrs. Gray has land in between and shown by record. That at the time of her death all the real estate she owned did not exceed in value $1,500, nor number of acres 90; and at the time of her death she was living upon the N. W. ¼ of section 19, aforesaid, with plaintiff as her husband, and with her family, and was occupying all the premises herein mentioned as the homestead. That Martha J. McReeves had been married prior to her marriage with John Casler, and at the time of her death had children surviving her by said marriage, to the number and names as shown in her said will hereinbefore mentioned. That defendant bought the premises in suit at the sale made by the administrator of the estate of Martha Casler, and claims title to said premises under and by virtue of said administrator's deed, which is considered in evidence, subject to any and all objections of plaintiffs, and took possession of said premises under said deed on the 10th day of April, 1894, and was in possession thereof at the time this suit was brought, and is now in possession thereof. That the monthly rents and profits of said premises are $55 or $4.60 per month. That the plaintiffs have been damaged in the sum of ___ dollars, to be fixed by court, for which they shall have judgment if they recover in this cause. That all the probate papers and records in the estate of Martha Casler now on file and in the probate office of Livingston county, Missouri, may be considered in evidence, subject to any and all objections of either party. That John Casler was the husband of said Martha Casler, and that John H. Casler is their child, and that John Casler is the duly and legally appointed and qualified guardian and curator of said John H. Casler, an infant child. That the deed of trust to Moss & McWilliams was given in payment of the purchase price of the within premises sued for. That either party may offer any other, further, and additional testimony on the hearing of this cause that they may desire. Any errors may be corrected in trial." The will of Martha Casler reads as follows: "I, Martha Casler, in view of the uncertainty of life and certainty of death, in the name of God, amen. I do will and bequeath all the property that I may die possessed of in the following manner: First. I will that all my funeral expenses and all my just debts shall be paid. Second. Whereas, I have a husband, John H. Casler, I will and bequeath to said husband the sum...