Godfrey v. Godfrey

• Decision Date: 31 May 1910
• Citation: 228 Mo. 507,128 S.W. 970
• Parties: GODFREY v. GODFREY et al.
• Court: Missouri Supreme Court

128 S.W. 970

228 Mo. 507

GODFREY v. GODFREY et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1910.

1. APPEAL AND ERROR (§ 639)—ABSTRACT ON APPEAL—DEFECTS—EFFECT.

Where the appeal is taken by the short form, and a certified copy of the judgment is on file and with the papers, the defect in the abstract arising from the failure to properly abstract therein the judgment is not fatal, and the court will determine the case on its merits.

2. APPEAL AND ERROR (§ 518)—RECORD—MOTION FOR JUDGMENT—BILL OF EXCEPTIONS.

A motion for judgment on the pleadings is a matter of exception, and can only be made a part of the record by the bill of exceptions.

Valliant, J., dissenting in part.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by John J. Godfrey against Katherine Godfrey and another. Judgment for plaintiff, and defendant Katherine Godfrey appeals. Affirmed.

John Lally, for appellant. J. W. Walsh, for respondent.

GRAVES, J.

Mary Godfrey departed this life in the city of St. Louis April 2, 1904, intestate, leaving the property in dispute. The plaintiff is her son and the two defendants are her daughters. Plaintiff and defendants constitute all of her legal heirs. The present action is one in partition. Plaintiff sues for the partition of the property, and asks that defendant Katherine Godfrey account for the rents and profits. By the first paragraph of her answer Katherine Godfrey, who is the sole appellant herein, pleads (1) that this defendant was the sole support of her mother for some 15 years prior to her death; (2) denies that the rental value of the property was $25 per month, and denies that plaintiff has a right to share therein; (3) avers that the deceased left no property except the land in dispute, and that her estate is in the course of administration, and the property will be required to pay allowed claims. By the second paragraph of her answer she avers (1) that the plaintiff had received from deceased an advancement of $1,000 (this alleged advancement was by reason of deceased having cared for plaintiff's motherless children); and (2) defendant pleads that for 15 years she paid the taxes in the sum of $450, the cost of improvements, $300, and did all the work about the place and in caring for the mother, which was of the value of $2,700; that all this she did at the request of Mary Godfrey, and for which expenditures and work the said Mary Godfrey promised and agreed to convey the property to this defendant. In the prayer to this count the defendant prays for a decree vesting title in her in pursuance of such agreement, or, if that is not done, that the advancement to plaintiff be brought into hotchpot, and the defendant be credited with the said $750 for taxes and improvements. This answer was specifically denied by a reply filed by plaintiff. Defendant Mary Ann Hosty, née Godfrey, filed answer, in which she admitted that she had conveyed her interest to defendant Katherine for $500, and took a deed of trust on the property for the said amount; that said amount was evidenced by a note, and the only interest she had was the unpaid balance on said note, secured by the deed of trust aforesaid. Defendant Katherine filed a motion for judgment upon the pleadings, which is the gravamen of her appeal, and will be further discussed. This motion was overruled and defendant Katherine elected, as shown by the record, to take no further part in the trial. So far as the record shows, the defendant Katherine took no further part in the trial up to the motion for new trial. Evidence was introduced, but her attorney did not cross-examine the witnesses. She filed motions for a new trial and in arrest of judgment, which being overruled she perfected her appeal. By the decree nisi plaintiff was adjudged to have an undivided third...