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

136 S.W. 422

233 Mo. 695

EWART et al. v. PENISTON et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

1. NEW TRIAL (§ 119)—MOTIONS—TIME.

An application cannot be considered as a motion for new trial, not having been filed within four calendar days after the trial, as required by Rev. St. 1909, § 2025.

2. NEW TRIAL (§ 111)—PARTIES ENTITLED TO APPLY.

Motion for new trial must come from the losing party, and may not be made by a stranger to the record.

3. JUDGMENT (§ 335)—REVIEW — PETITION — PARTIES.

Petition for review must, under Rev. St. 1909, § 2101 et seq., be made by a defendant in the cause, so that an application by a stranger is not good as such.

4. NEW TRIAL (§ 110) — BY COURT OF ITS OWN MOTION.

Rev. St. 1909, § 2023, providing that only one new trial shall be allowed to either party, except where the triers of fact shall have erred in a matter of law, or where the jury shall be guilty of misbehavior, applies only to a second motion for new trial urged by the same party; and does not affect the common-law power of the court, on its own motion, in the exercise of its discretion, and in the interest of justice, to set aside its judgment and the verdict at the term at which judgment was rendered, especially where no previous motion for new trial has been granted.

5. NEW TRIAL (§ 110) — BY COURT OF ITS OWN MOTION.

Where the court of its motion sets aside the judgment and verdict, there is no error in permitting a petition to stand of record, though as a motion for new trial it could not be considered, because not in time and not by a party.

6. APPEAL AND ERROR (§ 982)—REVIEW—SETTING ASIDE OF JUDGMENT—DISCRETION.

The setting aside of the judgment and verdict by the court of its own motion cannot be disturbed on appeal, when from the whole record it cannot be said the court abused its discretion.

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.

GRAVES, P. J.

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: "Wherefore your petitioner shows the court that he is in danger, unless the court is willing to exercise its discretion by setting aside said decree, of losing title to the valuable property which he and those under whom he claims have held for over half a century and without having an opportunity to defend his title before this court. Wherefore your petitioner respectfully prays that the court set aside the judgment and verdict in this case and order a new trial of the issues herein, at which time there may be present and participating such other and further parties as will represent the heirs at law at this time, and those who would take by descent and distribution the estate of Solomon P. Sublette, and such other and further parties, may be heard as claim title to the various parcels of the property embraced in the estate of Solomon P. Sublette, deceased, and that this petitioner and such others of the claimants of title in said property, or persons who are liable under warranty deeds covering said property, as desire to be made parties herein be allowed to enter their appearance herein as defendants."

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: "Affiant further states that he has been connected with this litigation for two years, and in connection with said litigation he has familiarized himself with the genealogy of the Sublette family, and particularly the genealogy of the testator, Solomon P. Sublette, and affiant verily believes that Thena Ewart and Martha Brass, the plaintiffs in this cause, and Robert S. Peniston, John N. Dalby, Nannie B. Wilburn, and Lucy Harris are all of the beneficiaries under the will of the testator propounded in this cause, either taking directly under the will or as purchasers from other devisees. Affiant further states that the petitioner, Albert T. Terry, is not one of the heirs at law of Solomon P. Sublette, the testator, nor is his grantor, nor is any one under whom Terry or his grantor claim as one of the heirs at law of the said Solomon P. Sublette, but in truth and fact Albert T. Terry and those under whom he claims are strangers to the blood of Solomon P. Sublette, and have no rights to be made plaintiffs or defendants in this cause. Affiant further states that the plaintiffs and defendants in this cause are not only the only beneficiaries and devisees under said will, but they are also all of the heirs at law of Solomon P. Sublette now interested in said estate. Further affiant saith not."

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: "Now at this day the petition of Albert T. Terry, filed herein January 3, 1908, verified by affidavit, to set aside the decree of this court, and for a rehearing coming on to be heard, comes said petitioner, by his attorney, come also the plaintiffs, by their attorneys; thereupon said parties submit to the court the said petition of Albert T. Terry, for a rehearing; also the plaintiffs' motion, filed herein January 8, 1908, to strike from the files the petition of said Albert T. Terry, for a rehearing; also the affidavit of James T. Roberts, filed herein January 10, 1908; and the court having heard and fully considered all of said matters and things, and being now fully advised of and concerning the premises, doth order that plaintiffs' motion to strike from the files the petition of Albert T. Terry for a rehearing, and plaintiffs' objection to said petition for a rehearing, be and the same are hereby overruled. And the court doth further order that the petition and motion of said Albert T. Terry for a rehearing be and the same is hereby sustained; and the court being satisfied that a mistake has been committed by a witness or witnesses concerning the heirs at law and parties interested in the subject-matter of this proceeding, whereby necessary and proper parties of said proceeding were not made parties thereto, and being also satisfied that an improper verdict and finding was occasioned by such matters, and because of want of evidence to sustain the verdict, doth, upon the petition of said Albert T. Terry, and also upon its own motion and in the exercise of the discretion of the court and during the terms of this court, to wit, the December term, 1907, at which said verdict and judgment was rendered and entered, order that said verdict and judgment be and the same is hereby set aside, vacated, and for naught held and esteemed."

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...