Ewart v. Peniston
Decision Date | 31 March 1911 |
Citation | 233 Mo. 695,136 S.W. 422 |
Parties | EWART et al. v. PENISTON et al. |
Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.
Action of Thena Ewart and others against R. S. Peniston and others. After judgment Albert T. Terry filed a petition. The court set aside the judgment, and granted a new trial, and plaintiffs appeal. Affirmed.
H. W. Femmer and Barnett & Barnett, for appellants. A. & J. F. Lee and Eliot, Chaplin, Blayney & Bedal, for petitioner.
Action in the circuit court of the city of St. Louis to establish the alleged will of Solomon P. Sublette. Plaintiffs and defendants are alleged to be the only heirs at law of the said Solomon P. Sublette, as well as the only beneficiaries under the said will. It appears that there was an attempt to probate the will in the probate court of the city of St. Louis in 1896, but the same was rejected. The petition avers that the plaintiffs are and for years had been married women, and thus they sought to obviate the bar of the statute of limitations. Upon a trial before a jury in the circuit court plaintiffs had a verdict, establishing the paper writing as the last will and testament of Solomon P. Sublette, deceased. Proper judgment followed such verdict December 13, 1907.
On January 3, 1908, one Albert T. Terry, a stranger to the record, filed a motion in which it is suggested that there are a great number of persons interested in the probate of this said will "who claim to own and hold the title to, as heirs and purchasers under said Solomon P. Sublette, large and valuable tracts of land located in the city of St. Louis, Missouri, and elsewhere, which titles are based upon the death of said Solomon P. Sublette, without a will, and the descent of his property to his heirs at law."
It is averred that the petitioner is one of such persons, and the land he so claims is described. The pleading filed by Terry thus concludes:
Such motion was verified, but no answer to the plaintiffs' petition was tendered therewith. As against this motion the plaintiffs filed the affidavit of James T. Roberts, in which it is said:
Plaintiffs also filed motion to strike out the said motion of Albert T. Terry, which was overruled by the trial court, and the judgment establishing the will was set aside by the following judgment of the said court:
From such order and judgment, the plaintiffs have appealed. Points made will be noted in the course of the opinion.
1. This case presents some peculiar phases. It is evident from the record that both plaintiffs and defendants were anxious to have the will established, and to that end there was no real opposition to plaintiffs. It is also evident that the case made was not extremely strong, because, with no opposition in the trial, plaintiffs were only able to secure a verdict from 10 jurors. This, where there is no contest, is rather significant. But this is really adrift. Plaintiffs did secure a verdict and a judgment, which the court later, although at the same term, set aside. Was there error in the action of the court in this regard, conceding there was some evidence to sustain such verdict and judgment? This action of the court must be viewed in this opinion from two standpoints (1) whether or not the court could act upon the motion of Terry, a stranger to the record, and (2) whether the court could act of its own motion. Of these in order.
2. The application of Terry cannot be sustained on the theory of being a motion for new trial for two reasons: (1) Because not filed in time, and (2) because filed by a stranger to the record.
This document was filed more than four days after the verdict and judgment, and as a motion for new trial was out of time. As a motion for new trial, it should not have been considered. R. S. 1909, § 2025; City of St. Joseph v. Robison, 125 Mo. 1, 28 S. W. 166; Scullin v. Railway Co., 192 Mo. 1, 90 S. W. 1026. The...
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