Franke v. Franke

• Decision Date: 03 June 1919
• Docket Number: No. 20197.,20197.
• Citation: 213 S.W. 41
• Parties: FRANKE v. FRANKE et al.
• Court: Missouri Supreme Court

213 S.W. 41

FRANKE v. FRANKE et al.

No. 20197.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, St. Louis County; Gustavus A. Wurdeman, Judge.

Petition for partition by Herman Franke against John Franke and another. From a judgment confirming the report of the commissioners appointed to partition the land and denying their motion to set aside the same, defendants appeal; the cause being certified to the Supreme Court by the St. Louis Court of Appeals. Affirmed.

On August 20, 1912, plaintiff filed in the circuit court of St. Louis county, Mo., against defendants, who are his brothers, an ordinary petition for the partition of 84,473 acres of land in said county, subject to a $6,000 deed of trust given thereon by plaintiff and defendants. The petition alleges that plaintiff and each defendant, subject to the incumbrance aforesaid, is entitled, as tenant in common, to the undivided one-third of said land; that it is susceptible of partition in kind, without prejudice to said owners. The court was requested to appoint commissioners to partition said land. Defendants August Franke and John Franke filed an answer, but as shown by the decree of the court, and plaintiff's supplemental abstract, pages 2 and 3, the answer was withdrawn on November 1, 1913, before the trial, and the latter was had upon the petition, and proof heard by the court.

On November 1, 1913, the trial court, after hearing the testimony in support of the allegations of petition, found that plaintiff and each of the defendants owned, subject to the deed of trust aforesaid, one-third interest in said land as tenant in common, and in due form appointed commissioners to divide the same. This interlocutory decree, defining the interests of the parties, and appointing commissioners to divide the property, was entered without objection, and no appeal was attempted to be taken therefrom. The commissioners appointed by the court, duly qualified as such, entered upon the performance of their duties, after due notice to the parties in interest, and assigned to each his portion of land as follows: To Herman Franke, 40.226 acres; to John Franke, 23 acres, and to August Franke, 21.247 acres. The commissioners made full report of their proceedings, in writing, to the court, described the land assigned to each of said parties, and asked for an allowance of $50 each for their services as commissioners. Said report was filed January 20, 1914, and on February 12, 1914, defendants filed exceptions to said report, in words and figures following:

"Motion to Set Aside Commissioners' Report.

"Come now the defendants, August Franke and John Franke, and except to the report of the commissioners, made and filed herein on the 20th day of January, 1914, and move the court that said report be set aside and new commissioners appointed to make the partition according to the decree of the court made and entered on November 1, 1913.

"And for reasons for this motion defendants aver: That the report of the commissioners filed herein shows that the partition made by said commissioners is unjust, unfair, inadequate, and out of proportion with the rights of the several parties. That it appears by said report that plaintiff, Herman Franke, has been given 40.226 acres, while the defendants, August and John Franke, have been given 21.247 acres and 23 acres, respectively, each represented to be and supposed to be of equal value; but the defendants, August Franke and John Franke, respectively represent to the court that the 40 plus acres given to Herman Franke by said Commissioners are of greater value by several thousand dollars than either of the shares given to defendants, August Franke and John Franke.

"And the defendants, in support of this motion to set aside said report, hereby offer to produce oral expert testimony concerning the value of the various parcels of land described in the commissioners' report, at the hearing of this motion.

"Respectfully submitted, Geo. B. Logan, Attorney for Defendants, August Franke and John Franke."

Defendants, in support of their exceptions, introduced as witnesses four real estate agents, named Oscar H. Sapper, Beverly 0. Stephens, Edmund Daniel, and Hugo Essen. In addition to the written report of the commissioners, the plaintiff introduced the evidence of Christ Ruehl, a real estate agent. The circuit judge, a resident of said county, after hearing the evidence aforesaid, overruled defendants' exceptions and confirmed the report of the commissioners.

The defendants, within four days after the confirmation of said report, filed their motion for a new trial, which was overruled, and the cause duly appealed by them to the St. Louis Court of Appeals. The latter certified the cause to this court for want of jurisdiction to try same.

Henry B. Davis, of St. Louis, for appellants.

Koenig & Koenig, of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

1. This case is before us upon appellants' exceptions to the report of the commissioners in dividing the land in controversy between plaintiff and defendants. The exceptions to the report are heretofore set out, and simply charge, by way of legal conclusions, that there is an inequality in the value of the interests assigned to the respective parties, to the prejudice of defendants. The petition for partition is an ordinary action at law, in which no equitable relief is asked or sought. The answer was withdrawn before the trial, and the interlocutory decree, defining the rights of the parties, was essentially a legal proceeding. No exceptions...