Green v. Green

• Decision Date: 22 December 1894
• Parties: Green v. Green et al., Appellants
• Court: Missouri Supreme Court

28 S.W. 1008

126 Mo. 17

Green v. Green et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1894

126 Mo. 17 at 25.

Original Opinion of December 22, 1894, Reported at: 126 Mo. 17.

Barclay, J., expresses no opinion.

OPINION

ON MOTION FOR REHEARING.

Per Curiam.

On motion for rehearing it is insisted that, inasmuch as the evidence shows that the plaintiff, as the widow of William Green, deceased, under the right of quarantine, is entitled to the mansion house and premises thereto belonging, until dower is assigned her, and, as ejectment is the proper remedy to recover it when deforced of it, the judgment should still be affirmed. But it is evident that the right of possession was claimed at the trial solely under her election, and the right of quarantine, and the extent of the property to which she would be entitled under it, were not made issues. We will not pass upon that right without a hearing in the circuit court, but we modify the judgment by remanding the cause, in order that the rights of the parties in respect thereto may be settled in this court.

In view of a probable retrial we deem it proper to say that we are of the opinion that the court did not err in permitting plaintiff to testify to her marriage. She was a competent witness under section 8918, Revised Statutes, 1889. She was not disqualified under the proviso of that section. As to the competency of plaintiff as a witness, Barclay, J., expresses no opinion.