Fruin v. O'Malley

CourtMissouri Supreme Court
Writing for the CourtBrown
Citation145 S.W. 437
PartiesFRUIN et al. v. O'MALLEY et al.
Decision Date27 February 1912
145 S.W. 437
FRUIN et al.
v.
O'MALLEY et al.
Supreme Court of Missouri. Division No. 2.
February 27, 1912.
On Motion for Rehearing, March 21, 1912.

1. APPEAL AND ERROR (§ 519)—RECORD— AGREED STATEMENTS OF FACTS.

Agreed statements of facts in cases instituted by petitions are mere matters of evidence, and never become a part of the record, unless incorporated in a bill of exceptions.

2. TRIAL (§ 388)—TRIAL BY COURT—SPECIAL FINDINGS.

Rev. St. 1909, § 1972, provides that on trial of a question of fact by the court the court need not state its finding, except generally, unless one of the parties requests it with a view of excepting on questions of law in the case. Held that, when requested, a statement or conclusion of facts proven and the conclusions of law must be written up and filed by the trial court, but this statement has no connection with the general findings which are usually recited in the judgment itself, but the special findings of facts and conclusions of law should be entirely separate from the judgment, that the party requesting such finding may except to the decision of the court on the questions of law or equity in the case.

On Motion for Rehearing.

3. APPEAL AND ERROR (§ 1153) — DISPOSITION OF CAUSE.

Under Rev. St. 1909, § 2083, which authorizes a rendition of such judgment on appeal as should have been entered below, the Supreme Court can correct an error in a judgment on its face in awarding interest at 8, instead of 6. per cent. per annum.

Appeal from St. Louis Circuit Court; D. G. Taylor, Judge.

Action by Jeremiah Fruin and others against Maggie O'Malley and others. Judgment for plaintiffs, and defendants appeal. Modified and affirmed.

Frank C. O'Malley, for appellants. Geo. D. Harris, for respondents.

BROWN, J.


Action at law to foreclose lien for special tax bills issued for street improvements. From a judgment of the circuit court of St. Louis city awarding to plaintiffs a lien as prayed in their petition, defendants appeal.

In seeking a reversal of the judgment of the trial court, the defendants attack, not only the validity of the contract under which the improvements were made, but also the constitutionality of certain parts of the charter of St. Louis city authorizing and regulating the improvement of streets and the issue of special tax bills for such improvements. Before considering the alleged invalidity of the tax bills which defendants' resourceful attorneys have presented with much learning and industry, we must first determine whether or not the errors, if any, committed by the trial court have been brought here in such manner as to authorize a review by an appellate court. The appellants have filed in this court what they term a printed abstract of the record, which embraces the petition, answer, reply, a special finding of facts by the trial court, the judgment, orders showing the filing of a motion for new trial, the overruling of same, and the granting of an appeal. No bill of exceptions was filed. The motion for new trial is not included in the record, and the finding of facts is not a part of the judgment; that is, the judgment is complete without reference to the finding of facts, and there are no conclusions of law, unless we shall say that the judgment itself is a conclusion of law, in that it declares that the plaintiffs are entitled to recover.

Respondents have also filed in this court what they term an "Additional Abstract of the Record," which is simply a printed copy of a stipulation entered into in the trial court agreeing upon certain matters of evidence to be...

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20 practice notes
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...636, 197 S.W. 355; Sutter v. Raeder, 149 Mo. 307, 50 S.W. 813; Rausch v. Michel, 192 Mo. 302, 91 S.W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437. (a) The court undoubtedly erred in refusing to make most of the findings of fact requested by light company. (b) Respecting the declaration......
  • State ex rel. United Brick & Tile Co. v. Wright, No. 34681.
    • United States
    • United States State Supreme Court of Missouri
    • July 2, 1936
    ...for any purpose whatsoever. Sec. 952, R.S. 1929; State ex rel. v. Lusk, 93 Mo. App. 680, 67 S.W. 711; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; Perringer v. Unknown Heirs of Raub, 300 Mo. 535, 254 S.W. 703; State ex rel. v. Keithley, 204 S.W. 24; Webster Groves v. Hunt, 234 S.W. 1006; T......
  • Wisdom v. Keithley, No. 26168.
    • United States
    • Court of Appeal of Missouri (US)
    • January 5, 1943
    ...may be reviewed without the presence of a bill of exceptions. [Snuffer v. Karr, 197 Mo. 182, 94 S.W. 983; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; State ex rel. v. Wright, 339 Mo. 160, 95 S.W. (2d) 804; City of Webster Groves v. Hunt (Mo. App.), 234 S.W. The record discloses that in th......
  • Green v. Whaley., No. 19216.
    • United States
    • United States State Supreme Court of Missouri
    • July 16, 1917
    ...v. Raeder, 149 Mo. loc. cit. 307, 50 S. W. 813; Rausch v. Michel, 192 Mo. loc. cit. 302, 91 S. W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S. W. 437. The declarations given and refused in this case indicate a theory entirely consistent with the conclusion evidently reached from the finding o......
  • Request a trial to view additional results
20 cases
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...636, 197 S.W. 355; Sutter v. Raeder, 149 Mo. 307, 50 S.W. 813; Rausch v. Michel, 192 Mo. 302, 91 S.W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437. (a) The court undoubtedly erred in refusing to make most of the findings of fact requested by light company. (b) Respecting the declaration......
  • State ex rel. United Brick & Tile Co. v. Wright, No. 34681.
    • United States
    • United States State Supreme Court of Missouri
    • July 2, 1936
    ...for any purpose whatsoever. Sec. 952, R.S. 1929; State ex rel. v. Lusk, 93 Mo. App. 680, 67 S.W. 711; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; Perringer v. Unknown Heirs of Raub, 300 Mo. 535, 254 S.W. 703; State ex rel. v. Keithley, 204 S.W. 24; Webster Groves v. Hunt, 234 S.W. 1006; T......
  • Wisdom v. Keithley, No. 26168.
    • United States
    • Court of Appeal of Missouri (US)
    • January 5, 1943
    ...may be reviewed without the presence of a bill of exceptions. [Snuffer v. Karr, 197 Mo. 182, 94 S.W. 983; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; State ex rel. v. Wright, 339 Mo. 160, 95 S.W. (2d) 804; City of Webster Groves v. Hunt (Mo. App.), 234 S.W. The record discloses that in th......
  • Green v. Whaley., No. 19216.
    • United States
    • United States State Supreme Court of Missouri
    • July 16, 1917
    ...v. Raeder, 149 Mo. loc. cit. 307, 50 S. W. 813; Rausch v. Michel, 192 Mo. loc. cit. 302, 91 S. W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S. W. 437. The declarations given and refused in this case indicate a theory entirely consistent with the conclusion evidently reached from the finding o......
  • Request a trial to view additional results

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