Cornett v. Lansaw

• Decision Date: 16 June 1922
• Docket Number: No. 21807.,21807.
• Citation: 243 S.W. 95
• Parties: CORNETT v. LANSAW et al.
• Court: Missouri Supreme Court

243 S.W. 95

CORNETT v. LANSAW et al.

No. 21807.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Rehearing Denied July 27, 1922.

Appeal from Circuit Court, Newton County; Charles L. Henson, Judge.

Action by C. W. Cornett against Louisa Lansaw, executrix, and others. From judgment for plaintiff, defendants appeal. Appeal dismissed.

George V. Farris, of Joplin, for appellants.

M. R. Lively, of Webb City, for respondent.

BROWN, C.

Suit instituted in the circuit court for McDonald county against Win. Lansaw alone, to set aside a conveyance of the land in question made by. Minnie B. Reece to said defendant and wife. William Lansaw died, and the suit was revived against his widow and heirs. The amended petition, omitting formal parts, is as follows:

"Comes now the plaintiff, and for his amended petition herein says for his cause of action that he is now, and has been since the 2d day of August, 1915, the owner of and entitled to the possession of the following described real estate situated in McDonald county, state of Missouri, to wit: The south ½ of the northwest ¼, of section 13, township 23, range 32, being 80 acres more or less. That he became the owner of said real estate by virtue of purchase and by sheriff's deed executed and delivered to him on said date, for value received, and said deed is made a part hereof and filed herewith and marked `Exhibit A.'

"Plaintiff further alleges that the common source of title to said premises was, and is, Minnie B. Reece and C. M. Reece, and that on said date Minnie B. Reece was the owner of said real estate prior to the sale by sheriff and the purchase by the plaintiff.

"Plaintiff further alleges that the defendants claim some interest in said real estate, but plaintiff alleges the fact to be that defendants have no right or interest in said real estate, and that the alleged deed from Minnie B. Reece to William Lansaw, deceased, was without consideration and given in fraud of this plaintiff and for the purpose of defrauding this plaintiff, and that in truth and in fact said premises was always that of the defendant Minnie B. Reece, until purchased by this plaintiff, who was on and prior to said purchase an adjudged creditor of Minnie B. Reece and C. M. Reece. "Wherefore plaintiff prays that an alias summons be issued to said above-named defendants and that they and each of them be required to show what right, title or interest, if any, he or she may have in said property, and that said alleged deed from Minnie B. Reece to William Lansaw be annulled, and that plaintiff be adjudged the owner of said property, and that said pretended title and conveyance by said deed be set aside, canceled and for naught held, and that all of the rights of all the parties hereto be ascertained and determined by the court in and to said real estate, and that plaintiff be adjudged the possession of said premises."

Then follows an ordinary count in ejectment for the same land.

The answer, after a general denial of both counts of the petition, pleads that on the ____ day of February, 1912, Charles M. Reece was duly adjudged a bankrupt by the District Court of the United States for the Western District of Missouri; that a trustee was appointed in said cause, who qualified and. took possession, and that the bankrupt preceeding was still pending; that the sale alleged in the petition was void; and that he purchased the land for value before the rendition of any judgment against the Reeces. The plaintiffs replied by general denial. The cause was tried and judgment rendered against the defendants on March 8, 1919.

On the same day the defendants filed their motion for a new trial, which was on said date overruled by the court, and defendants excepted. On the same day the defendants filed their affidavit for appeal, which was allowed, and the defendants were given until the first day of the next term of the court to file bill of exceptions.

An abstract of the record was filed in this court October 12, 1921, stating the above facts; but it failed to set out the motion for a new trial. The short transcript was filed in this court on March 24, 1919, and the appeal was set for hearing on January 11, 1921.

On December 31, 1920, the respondent, after due notice to appellant, filed his motion to dismiss the appeal, stating as grounds thereof that the appellants failed to comply with rule 11 of this court (228 S. W. vii) in that they "failed to deliver to respondent a copy of their abstract of record at least 30 days before the cause is set for hearing, * * * and have failed to comply with rule 12 by filing a complete transcript of the record in this court in the first instance, or to deliver to respondent a copy of their abstract of record at least 30 days before the day on which the cause is set for hearing, i. e. January 11, 1921."

On April 14, 1921, the respondent filed his motion to affirm the judgment on the following grounds:

"First. That the appellants have not complied with rules 11 and 12 of this court as to filing and serving of an abstract of record in this case and the statutes of this state, in this: That said abstract of record served and filed by appellants does not purport to show that the bill of exceptions was signed by the trial judge or filed by the clerk of the circuit court in which said cause was tried.

"Second. That it does not set out a motion for new trial in the abstract of record, and the bill of exceptions does not set out a motion for a new trial or properly call for same.

"Third. That the abstract of record proper does not show there was any exceptions to the action of the court in its ruling on motion for new trial, and the bill of exceptions does not show there was any exception to the action of the court in its ruling on motion for new trial.

"Fourth. The abstract of record does not show that the bill of exceptions was filed with the clerk and made a part of the record in this case.

"Fifth. That there is no assignment of error in appellants' brief that relates to the record proper."

In answer to this, and on the 16th day of April, 1921, the appellants filed affidavit of Mr. George V. Farris, their attorney, together with the affidavit of his stenographer. The affidavit of the stenographer states that she prepared the abstract of record in said cause as the same was dictated to her by Mr. Farris, and that from the reading of her notes she known that the manuscript copy prepared for the printer contained the matter alleged in the motion to have been omitted. The affidavit of Mr. Farris stated that he prepared and filed, in due time the motion for a new trial, which he sets out in full, and which contained all the several grounds relied on by appellants in this court; that he filed the same in due time; that it was overruled; and that proper exceptions were taken to such action of the court at the time.

It also states that the bill of exceptions was duly prepared by him and signed by the trial judge; that on said day he asked the clerk of the trial court for the court files in said cause and was informed...