Ewart v. Peniston
| Decision Date | 31 March 1911 |
| Citation | 136 S.W. 422,233 Mo. 695 |
| Parties | THENA EWART et al., Appellants, v. R. S. PENISTON et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Chas. Claflin Allen, Judge.
Affirmed.
H. W Femmer and Barnett & Barnett for appellants.
(1) The court erred in setting aside the verdict of the jury and granting a new trial on the application of Terry, and erred in overruling plaintiff's motion to strike out said Terry's petition for a new trial for the following reasons: First, because if said application is to be regarded as a motion for a new trial the same was filed too late. All motions for new trial, and in arrest of judgment, shall be filed within four days after the trial, and this was not filed until about twenty-two days after the trial. R. S 1909, sec. 2025; St. Joseph v. Robinson, 125 Mo. 1; Campbell v. Cassville, 130 Mo.App. 102; Wright v. Fetters, 121 Mo.App. 588; Scullin v Railroad, 192 Mo. 1; State v. Fawcett, 212 Mo. 729. Second, if said application of Terry is to be construed as a petition for a review, under secs. 2100 and 2104, R. S. 1909, then the said petition could not have been properly considered by the court, because under such sections no one but a defendant in the cause can file any such petition for a review. R. S. 1909, sec. 2101. Section 2104 says that no judgment shall be set aside unless the petition for review shall state the existence of facts set forth in section 2101. (2) The verdict of the jury and the finding and judgment of the court is final, saving to the court the right of granting a new trial as in other cases. R. S. 1909, sec. 556. The above section is conclusive as to the effect of the judgment in this case and the same cannot be attacked or set aside except by granting a new trial as in other cases. There will be no ground for granting a new trial here, as in other cases, because no motion for a new trial was filed within four days or at any other time and no petition for a review has been filed by any party to the suit. Therefore, the verdict of the jury and the judgment must be final, and the court erred in setting aside the verdict and granting a new trial. (3) Even though this application for a new trial had been timely and in proper form it should not have been sustained because Albert T. Terry is not a party to this suit. It is not necessary to make all parties who may have an interest in the land formerly owned by Sublette parties to this suit. Such would be impracticable and result in a denial of justice. It is only necessary to make the legatees under the will, or those claiming under them, and the heirs at law of Sublette, parties to the suit. All persons who may be interested in the estate are not necessary parties. Kischman v. Scott, 166 Mo. 224. Here the petition alleges and the evidence sustains the allegation that the parties to the suit are all the heirs and legatees of Sublette. There is no allegation that Terry is an heir or descendant of Sublette. He is a stranger, a volunteer, and the fact that he may have some interest in the property of Sublette by purchase does not make him a necessary party to the suit. (4) If Terry was a necessary party to the suit, he has not sought to make himself a party. In his paper he does not move the court for permission to be made a party and does not offer to file any answer therein. He simply asks that the judgment may be set aside, so that any party who may so desire at the next trial, may appear and be heard. Should thu court below be authorized to set aside the verdict of a jury and its own judgment, upon the mere general statement that there are other parties, who are interested in the litigation, without giving their names or without going into court and offering to be made parties to such suit, there could be no final determination of any litigation. (5) There is no law authorizing any person to be made a party defendant upon his own demand, in a suit previously pending, because his interest may be affected by the controversy in some collateral way. He cannot intrude himself or force himself into the case. Kortjohn v. Seimers, 29 Mo.App. 271; Boyer v. Hamilton, 21 Mo.App. 521. The trial court cannot set aside a verdict of a jury and its own judgment for the mere causes that it may deem sufficient, but is bound, in the exercise of its discretion in setting aside such verdict and judgment, to the causes mentioned in Sec. 2023, R. S. 1909; State ex rel. v. Adams, 84 Mo. 316.
A. & J. F. Lee and Eliot, Chaplin, Blayney & Bedal for petitioner.
(1) Courts having common law jurisdiction possess the inherent power to set aside their own judgments at any time during the term in which they are rendered, with or without motion, where the judge is of the opinion that for any reason an injustice has been done, or a fair trial was not had. Scott v. Smith, 133 Mo. 618; Rottmann v. Schmucker, 94 Mo. 139; Hesse v. Seyp, 88 Mo.App. 66. (2) The appellate courts will not interfere with such action of the trial court, in setting aside a judgment and granting a new trial, unless the trial judge has acted arbitrarily and oppressively. (3) The statutory provisions pertaining to the granting of a new trial are not the only authority of a court to grant a new trial. The court has a common-law power to make such order, for good reason, on its own motion, or at the suggestion of a party. Fine v. Richards, 15 Mo. 315; Garneau v. Herthel, 15 Mo. 19; Hewitt v. Steele, 118 Mo. 463; Nulton v. Croskey, 111 Mo.App. 18. (4) Under Sec. 556, R. S. 1909, the court, in the matter of probating a will in solemn form, has the right of granting a new trial, as in other cases. (5) The action of the trial court was not only not arbitrary nor oppressive, but was taken to avoid a judgment based upon mistake and not supported by the evidence, and which, if permitted to stand, worked an injustice -- since: 1. A proceeding, under Sec. 555, R. S. 1909, is a proceeding in rem and binding upon all the world. Watson v. Alderson, 144 Mo. 345; Jourden v. Meier, 31 Mo. 40. 2. Where a will has once been probated in solemn form, equity will not set aside nor modify nor avoid the judgment establishing the will. Woerner on Administration (2 Ed.), sec. 497; Stowe v. Stowe, 140 Mo. 594. 3. A judgment probating a will in solemn form is an entirety, and, if valid, binds not only all who were parties to the proceeding, but everyone whose interests are affected by the will. Wells v. Wells, 144 Mo. 198; Rush v. Rush, 19 Mo. 441. (6) One offering a will for probate in solemn form pursuant to Sec. 555, R. S. 1909, must be a party interested in the probate of the will -- that is, one who will take under the will. A failure of a proponent to prove that he is such a party is just as fatal as a failure of a plaintiff in any other action to prove that he is a proper party plaintiff. R. S. 1909, sec. 555. (7) The probate of a will in solemn form (R. S. 1909, sec. 555) requires that an issue be made, and the proceeding is inter partes and requires notice to all parties in interest. Woerner on Administration (2 Ed.), sec. 500; Eddy v. Parke, 31 Mo. 513; Rush v. Rush, 19 Mo. 441; Wells v. Wells, 144 Mo. 198. The parties in interest are: 1, the beneficiaries under the will, other than the proponents; 2, the heirs at law of the decedent. (8) Those who have by attachment, execution, conveyance or otherwise, acquired an interest and title in decedent's property, through an intestate devolution of decedent's property -- which interest and title would be affected, impaired or destroyed by the probating of decedent's will -- are entitled to be made parties to the probating of a will in solemn form. Alderson v. Watson, 146 Mo. 333; In re Langevin, 45 Minn. 429; Smith v. Bradstreet, 16 Pick. 264; Davis v. Leete, 111 Ky. 695; Foster v. Jordan, 130 Ky. 445; Brooks v. Paine, 123 Ky. 271. (9) The ten-year Statute of Limitations applies to the probating of a will in common form. Foster v. Jordan, 130 Ky. 445; Reid's Administrator v. Benge, 112 Ky. 810; Cleveland Orphan Institution v. Helm, 24 Ky. Law Rep. 2485.
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:
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