Clarkson v. Stanchfield

• Decision Date: 31 October 1874
• Citation: 57 Mo. 573
• Parties: JOSEPH G. CLARKSON, Defendant in Error, v. L. L. STANCHFIELD, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

57 Mo. 573

JOSEPH G. CLARKSON, Defendant in Error,

v.L. L. STANCHFIELD, et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Wayne Circuit Court.

Kitchen, Pope & McGinnis, for Plaintiffs in Error.

I. The issue of ownership was not before the court and it should not have passed upon it in its judgment.

II. Plaintiff in his reply to the separate answer of Hull & French, does not traverse their disclaimer of title to, and possession of all except a part of ““east one-half of south one-quarter.” The issue then was upon defendant's possession of this part of “east one-half of south one-quarter,” if that issue was found against defendants, judgment should have been given for possession of that part alone and for the damages to that. The judgment in ejectment can go no further than to take from defendants the possession of the real estate in his possession, when suit was brought, and damages. Judgment is for possession of the 240 acres; more than was embraced in the issue before the court.

III. “If error is apparent onthe face of those pleadings, which constitute the record proper, we will reverse the cause whether any exception was taken or not;” (38 Mo., 489,) and “if the judgment be erroneous it will be reversed though no motion be made to set it aside in an inferior court.” (Whit. Prac., 516, and authorities cited.)Whittelsey and B. Zwart, for Defendant in Error.

I. The defendants not having made the action of the court upon the motion to set aside the judgment, filed at a term subsequent to the judgment, part of the record by bill of exceptions, this court cannot consider such motion. (Hoyt vs. Williams, 41 Mo., 270; Gramp vs. Dunnivant, 23 Mo., 254; Bateson vs. Clark, 37 Mo., 31; Richardson vs. George, 34 Mo., 104 and note; State vs. Bacheler, 15 Mo., 208; Mechanics' Bank vs. Klein, 33 Mo., 559; Hart vs. Walker, 31 Mo., 26; Whit. Prac., §§ 384, 5, 6; Id., p. 489.)

II. There being no error of record apparent, there is no irregularity shown for which the judgment should be set aside or reversed. Plaintiff therefore asks an affirmance of the judgment of the Circuit Court.

LEWIS, Judge, delivered the opinion of the court.

This was an action of ejectment against four defendants. When the cause was reached for trial, the plaintiff dismissed as to one defendant. The other three having answered, but not further appearing, the cause was submitted to the court without a jury, whereupon the finding and judgment were for the plaintiff, for recovery of possession and $1,650 damages, with $10 for monthly value until surrender of the premises. No motion for a new trial was filed, nor does any bill of exceptions appear in the record.

The transcript before us presents a motion filed by defendants at the next succeeding term, to set aside the judgment, together with sundry affidavits in its support. The motion would appear to have been overruled. But none of these matters were preserved in a bill of exceptions. By a rule well established and generally known, we are therefore precluded from bestowing any attention upon them. (Brown vs Foote, 55 Mo., 178.)

The counsel for plaintiffs in error, urge that there are...