Downing v. Dinwiddie
| Decision Date | 10 January 1896 |
| Citation | 33 S.W. 575,132 Mo. 92 |
| Parties | Downing, Appellant, v. Dinwiddie et al |
| Court | Missouri Supreme Court |
Original Opinion of January 10, 1896, Reported at: 132 Mo. 92.
OPINION
ON MOTION FOR REHEARING.
The motion for rehearing has called for a review of all the rulings announced in the first opinion. We adhere to them, except in the particulars we shall point out.
The briefs in this court and the record of the trial indicate that plaintiff's legal title to lot 14 was conceded, and the evidence, we think, showed that plaintiff was in the enjoyment of the disputed strip, as an alley, during several months of 1891, until defendants interfered with his enjoyment, shortly before the bringing of this suit. Defendants' proof in the trial court was directed toward the establishment of a right to the exclusive use of the strip, by adverse possession. Their claim then and their argument in this court were alike founded on that contention.
Oral evidence of transfers of lot 14 from the common source of title came in without objection, on that theory. But now, on the motion for rehearing, it is insisted that plaintiff has not sufficiently proved his own title to warrant a final decree in his favor.
Parties are usually held bound on appeal by the positions they take at the trial; and after bringing a case to judgment here on one theory, it is rather late to open up an entirely new field of legal controversy.
If there was a total want of proof of title in plaintiff, the circuit judgment would necessarily be correct and be affirmed. But the evidence, we consider, disclosed plaintiff's title, though some of the links of it were furnished by statements of witnesses which might have been held incompetent had timely objections been interposed.
It is too late to start such objections in this court.
As our ruling, however, on the title would be final, in an action of this nature, we believe it proper and just to direct a new trial of the cause, in accordance with the principles herein declared, and our former decision is so modified.
The judgment is therefore reversed, the cause remanded, and the motion for rehearing overruled, with the concurrence of all the members of the first division.
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