Eddie v. Eddie

• Citation: 39 S.W. 451,138 Mo. 599
• Parties: Eddie et al. v. Eddie et al., Appellant
• Decision Date: 03 April 1897
• Court: United States State Supreme Court of Missouri

39 S.W. 451

138 Mo. 599

Eddie et al. v. Eddie et al., Appellant

Supreme Court of Missouri, First Division

April 3, 1897

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

John R Warfield for appellants.

(1) By the record in this case the proceedings throughout were in effect entirely ex parte. Neither at the trial nor in any of the subsequent proceedings were defendants given an opportunity to be heard upon the matter, and, although the interests of minor defendants were in issue, yet both the hearing upon the merits, upon the exceptions to report of the commissioners, and upon allowance of plaintiffs' attorney fees, were all had in the absence of said minors and their co-defendant, Ophelia P. Eddie, and of their and her representative or attorney. This was reversible error. (2) There was no authority in the commissioners to set apart a portion of the lands in controversy as a common burial ground. There is no finding of the court to this effect, no order of the court in the premises, but, on the contrary, the order was distinctly for the partitioning and setting apart of all the lands, according to the respective interests of the parties. If one acre may be set apart or omitted in this way, equally might the whole tract, or any other proportion of it, be so disposed of, and thus the defendants be deprived of their just inheritance. This is fatal error. (3) The decree is further fatally defective in that after ascertaining in detail the separate interest of the minor defendants, it fails to provide for the assignment of such interests separately, and forces them to another and independent action to obtain such assignment. (4) Under the statute and the rules of court, formal motions filed in the progress of a cause may not be heard upon the day of filing but must lay over at least one day before being passed upon by the court. Hence it was error for the court to hear and pass upon the motion for allowance of attorney's fees, as was done here, and without opportunity to defendants to appear and contest the same.

James A. Henderson for respondents.

(1) If any written application for a continuance was made it is not preserved in the record, and this court has no means of ascertaining upon what grounds the application was based. (2) The decree entered in this cause shows all parties present. It reads as follows: "Come now at this day the aforesaid plaintiffs, by their attorney, and come also the said Ophelia P. Eddie, by her attorney, and the said Aubrey Eddie, Ralph Eddie and Ellis Eddie, appear by J. H. Pipkin, their curator, by his attorney." (3) The trial court has complete control of its own record, and may of its own motion amend or correct any record entry in the furtherance of justice. The nunc pro tunc entry was to show that the court had fully considered the issue raised by the pleadings on the question of advancements. (4) The commissioners found a small plat forty-five by sixty feet in one corner of said lands that had been, and was then, the burying ground of the Eddie family. This plat, containing about one sixteenth part of an acre, and worth, as land, about $ 5, they cut off from the other lands and left the ownership of it as it then was, in the heirs of Thomas Eddie, Sr., respondents and appellants herein. How could they do otherwise? How could it be valued? How could the interests of these respondents and appellants be severed? (5) Mrs. Ophelia P. Eddie, as widow of Henry Eddie, had a dower interest in an undivided one fourth of said lands. Mrs. Eddie has since died and her interest has passed to her children, the other appellants. (6) The third, fourth and fifth exceptions involved questions of fact, which this court, in the absence of any evidence to the contrary, may assume were fully considered and correctly adjudged by the trial court.

OPINION

Macfarlane, J.

This suit is for the partition of several described tracts of land situate in St. Louis county. The parties are James A., John C. and Edward Eddie, sons of Thomas Eddie, deceased, plaintiffs, and Ophelia P. Eddie, widow of Henry C. Eddie, a deceased son of said Thomas Eddie, and Aubrey, Ralph and Ellis Eddie, minor children of said deceased son. No question is raised as to the title and respective interests of the parties. The petition states the rights of the parties as follows:

"That the parties hereto are entitled to all of said land hereinafter described, as follows: The said James A. Eddie, John C. Eddie, and Edward Eddie are each entitled to an undivided one fourth thereof, in fee. The said Ophelia P. Eddie is entitled to a dower interest in an undivided one fourth thereof. The said Aubrey Eddie, Ralph Eddie and Ellis Eddie are each entitled to an undivided one twelfth interest therein, subject to the dower interest of their mother, the said Ophelia P. Eddie."

The defendants were all duly served with process, and answered jointly, the infants by their curator. The answer charged that during the lifetime of said Thomas Eddie, he conveyed a tract of land to each of the plaintiffs, by way of advancements, and asked that they be charged therewith.

Plaintiffs by reply admitted the advancements made to them respectively, but charged that a tract of land of equal value had also been conveyed by the said Thomas Eddie to the husband of defendant Ophelia, and father of the other defendants. They offered to bring the advancements to them into hotchpot, but asked that defendants be required to do the like.

The cause came on for hearing at the May term, 1894, and defendants moved unsuccessfully for a continuance on account of the sickness of defendant Ophelia, and her inability to attend court. The cause was thereupon heard, the interests of the parties found as stated in the petition, judgment of partition rendered and commissioners appointed to divide the land.

At the October term, 1894, and on the fifteenth of said month, the commissioners filed their report. By this report the land was divided and one fourth thereof allotted in severalty to each of the plaintiffs, and one fourth to the minor defendants, subject to the dower of their mother, who was given dower in the same. Defendants filed exceptions to the report October 22, 1894. Exceptions were overruled November 19. December 8, defendants filed affidavit for an appeal which was granted. December 27 the order granting the appeal was set aside and the report of the commissioners was confirmed, and an attorney's fee allowed. The affidavit for an appeal was, thereupon, refiled and an appeal allowed.

The judgment of partition was rendered at the May term and on the seventh of June, 1894. At the same term, and on August 2, 1894, the original judgment was amended or corrected and made to conform to the finding of the court. It is stated to be nunc pro tunc, as of the date of June 7, 1894. The only correction or addition to the original decree was the following: "And the court doth further find that the conveyance made by Thomas Eddie, Sr., to his sons were and are in fact and in law advancements of even or equal value, and that each one of said sons, including the said ...