Gray v. Missouri Lumber & Mining Co.

• Decision Date: 01 June 1915
• Docket Number: No. 17352.,17352.
• Court: Missouri Supreme Court
• Parties: GRAY v. MISSOURI LUMBER & MINING CO.

177 S.W. 595

GRAY v. MISSOURI LUMBER & MINING CO.

No. 17352.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by William F. Gray against the Missouri Lumber & Mining Company. Judgment for plaintiff, and from granting of defendant's motion for a new trial, plaintiff appeals. Affirmed.

William M. Gray brought this action to quiet the title to 320 acres of land in Shannon county, Mo., against the Missouri Lumber & Mining Company, which denied that appellant owned the land in dispute and pleaded the ten-year statute of limitations. Appellant gave his deposition `in the case, which tended to show that his full name was William Francis Gray; that he was a farmer, and had lived for 15 years near Odessa, Mo., in Lafayette county; that prior to locating there he had lived near Higginsville, Mo., since 1881 or 1882; that before he came to this state he had lived on a farm near Cynthiana, Harrison county, Ky., until 1872, when he left for Texas, where he remained 5 years, and then returned to Kentucky, and stayed on the farm where he was raised until he moved to Missouri; that his father died in the 60's on the farm where appellant was born, leaving him as the only child; that his mother remarried and has died; that his father's name was Francis Gray, and he thought there was a middle initial, but he did not know what it was; that his father was buried at a country graveyard about 2½ miles from the farm; that appellant was born in 1854. Appellant introduced a certified copy of a patent of the United States of the land in dispute to Francis M. Gray, of Harrison county, Ky., dated March 1, 1860. Defendant introduced a number of deeds and instruments, but only relies upon one of them as conveying the title of Francis M. Gray (the common source of title). This was a sheriff's deed following a sale for taxes and purported to convey the interest of Francis M. Gray and others to W. H. Stout and P. T. Pitts. Appellant objected to the deed on the ground that Francis M. Gray was dead on the day of its date, September 17, 1886. The court overruled this objection. Defendant introduced other deeds to it from the grantees in the sheriff's deed, and also a decree of the circuit court of Shannon county in 1902 quieting the title to said lands in it against Francis M. Gray and others. This was objected to by appellant on the ground that said Francis M. Gray was then dead, and appellant was not made a party. This was all the evidence. The court, sitting as a jury, rendered a decree that appellant was the owner of the land in dispute, and quieted his title against defendant. The defendant filed motions for a new trial embracing, among others, the ground that the verdict and judgment were against the weight of the evidence. This motion was regularly continued to the next term of the court, when defendant presented ex parte depositions taken in Kentucky, which tended to prove that appellant was the son of one Francis J. Gray, whose tombstone disclosed that he was born in 1824 and died in 1858, and had lived and was buried near Cynthiana, Harrison county, Ky. These depositions also tended to prove that there lived in the same locality a Francis M. Gray, who died leaving an only child—a girl named Alice; that the two Grays lived about 4 miles apart, and were not related. The court granted defendant's motion for a new trial, but assigned no reason for its action, and plaintiff duly appealed to this court.

S. A. Cunningham, of Eminence (J. W. Chilton, of Winona, of counsel), for appellant. L. B. Shuck, of Eminence, L. F. Denning, and W. J. Orr, of Springfield, for respondent.

BOND, J. (after stating the facts as above).

I. This case presents a most anomalous phase. The depositions filed in support of its motion for a new trial were wholly incompetent as evidence and unwarranted by any grounds alleged in the motion, and should not have been made, if they were, the basis of the order granting a new trial. The motion for a new trial was pending at a subsequent term of the court to that in which it was filed. It did not in any of its grounds allege the discovery of new evidence, nor set out such evidence, nor aver that there was no lack of diligence in its discovery, nor was it sworn to. Without such a foundation laid in the motion for a new trial, no affidavits or depositions purporting to contain new evidence were receivable in support of the motion, and should not have been considered by the learned trial judge. Winn v. Greer, 217 Mo. loc. cit. 461, 117 S. W. 48, et cases cited; King v. Gilson, 206 Mo. 264, 104 S. W. 52.

Neither was it proper for the learned trial court to look to the contents of such depositions as a motive for exercising the common-law power inherent in our circuit courts as the counterpart of the King's Bench in England to set aside of their own motion a verdict when that is necessary to prevent injustice, fraud, and unfairness; for the exercise of that power, while independent of the filing of a motion within the statutory period, is yet strictly confined to the term when the verdict or judgment was rendered and during which they rested in the breast of the court. But after the lapse of the term of their rendition the court loses all jurisdiction over the verdict or judgment rendered before the expiration of the term, except where a statutory ...