Griffin v. Regan
| Decision Date | 31 October 1883 |
| Citation | 79 Mo. 73 |
| Parties | GRIFFIN v. REGAN, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.
REVERSED.
Winslow & Cunningham for plaintiff in error.
Harding & Buller and J. C. Cravens for defendant in error.
This suit was instituted in February, 1871, in the circuit court of Jasper county, by the plaintiff, formerly Arabella Fisher, now Arabella Griffin, (her husband joining in the suit,) for the assignment of dower to her in lots 15 and 16 in the city of Carthage. Judgment was rendered on the 25th day of March, 1875, after trial had upon the issue presented in the answer of defendant, in which she was adjudged to be entitled to dower in the above premises. The said property was sold in 1853 at execution sale as the property of Edward Fisher, to whom it then belonged, and who was then the husband of said plaintiff Arabella Griffin. Fisher died in December, 1864. The defendant bought said lots in 1868, at which time the lots were without improvements. In 1869 the defendant erected upon the lots a brick block of buildings at a cost of about $15,000, the naked lots then being worth, according to the evidence, from $5,000 to $8,000. Commissioners having been appointed to admeasure demandant's dower, at the April term, 1877, reported that the premises were not susceptible of division, and at the September term of the same year a jury was empanelled to assess to plaintiff damages for detention of dower, and to find the yearly value thereof for future years. The jury returned into court the following verdict: “We, the jury, assess plaintiff's damages for the detention of dower, at the sum of $698.50, and further find the yearly value of the ground rent to be $500.”
Upon this verdict the court rendered a general personal judgment against defendant for the sum of $698.50 for detention of dower, and the sum of $166.66 annually from and after the 15th day of September, 1877, during the natural life of said Arabella. From this judgment defendant has prosecuted his writ of error to this court.
Among other objections, it is urged by counsel that the trial of the question as to whether demandant was entitled to dower in the premises was by the court without the intervention of a jury, and that the record does not show waiver of a jury; that improper instructions on said trial were given for plaintiff, which are now lost. As to these objections it may be said that in the motion for new trial neither the giving of im proper instructions, nor the fact that the question was tried without the intervention of a jury was called to the attention of the court as grounds for the motion; and for that, if for no other reason, the objections urged cannot be considered.
On the trial had in September, 1877, to ascertain demandant's damages for detention of dower, and the annual amount she would be entitled to in the future, the court proceeded on the theory that demandant was entitled to recover as damages for detention of dower one-third of the net yearly value of the land or lots without reference to the improvements put by defendant on the lots, after deducting the taxes paid by defendant, if the same had been reasonably used by the owner; and for future years one-third of the present yearly value of the ground rent in present condition and use of premises not including the rental value of the improvements thereon. The court was fully warranted in trying the case upon the above theory by the following cases: Riley v. Clamorgan, 15 Mo. 331; Thomas v. Mallinckrodt, 43 Mo. 58; O'Flaherty v. Sutton, 49 Mo. 583.
Various exceptions on the trial were taken to the action of the court in receiving and rejecting evidence, and giving and refusing instructions, which we do not deem necessary to consider in detail, as they may well be disposed of by saying that the evidence received and instructions given by the court were in harmony with the above theory on which the case was tried, and that the...
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Lionberger v. Baker
...have occurred at the trial below, but not mentioned in the motion for a new trial, will not be considered in the appellate court. Griffin v. Regan, 79 Mo. 73. (10) Under the well established practice in this state a creditor has his election to either ( a) file a creditor's bill to charge p......
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Jiner v. Jiner
...ex rel. Rucker v. Rucker, 59 Mo. 17; Gorman v. Aust, 55 Mo. 163; Landcaster v. Washington Life Insurance Company, 62 Mo. 121; Griffin v. Regan, 79 Mo. 73; Taylor v. of R. R. Trainmen, 106 Mo. App. D. B. Deem for respondent. (1) Trial courts have large discretion in granting new trials, espe......
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Young v. Thrasher
... ... and yearly value of dower of respondent. Thomas v ... Mallinkrodt, 43 Mo. 468; O'Flaherty v ... Sutton, 49 Mo. 583; Griffith v. Regan, 79 Mo ... 73. (5) The court below erred in overruling appellant's ... motions for new trial and in arrest of judgment. (6) The ... judgment of ... value of the improvements thereon ... This ... was the theory upon which the court acted in Griffin v ... Regan, 79 Mo. 73, which under the facts in judgment was ... approved, and in the later case of Rannels v. Washington ... University, 96 Mo ... ...
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Farris v. Coleman
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