Haley v. Horwitz
| Decision Date | 13 February 1956 |
| Docket Number | No. 44766,No. 1,44766,1 |
| Citation | 286 S.W.2d 796 |
| Parties | Henrietta HALEY, Plaintiff-Respondent, v. Milford HORWITZ et al., Defendants, Bertha Schneider, Maurice Cummins, Lillian Friedman, and Meyer Horwitz, Defendants-Appellants |
| Court | Missouri Supreme Court |
Max W. Kramer, Jerome Kalishman, Kramer & Chused, St. Louis, for appellants.
John H. Haley, Bowling Green, pro se.
Thomas R. McGinnis, St. Louis, pro se.
Thompson, Mitchell, Thompson & Douglas, James M. Douglas, Courtney Shands, Jr., St. Louis, for respondent John P. English.
VAN OSDOL, Commissioner.
This is an appeal from an order of distribution in an action to partition forty parcels of real property--thirty-eight parcels in the City of St. Louis, one in St. Louis County and one in Wright County--of which one Julius Horwitz, who died intestate December 7, 1952, was seized and possessed at the time of his death. The intestate had no lineal descendants. He was survived by forty-six nieces, nephews, grandnieces and grandnephews. June 28, 1954, the trial court entered an interlocutory order of partition and, having determined that the property could not be partitioned in kind, ordered the property sold by a special commissioner. The special commissioner's report of sale of the properties for the aggregate amount of $175,850, filed November 1, 1954, was approved, and orders were entered allowing a $17,500 fee to plaintiff's counsel, and a fee of $10,000 to the special commissioner. Four of defendants, appellants herein, moved to set aside the orders allowing the stated fees. The grounds stated in the motions were generally that the amounts of the respective fees were unreasonable and excessive, and that the amounts of the allowances were so unreasonable and excessive as to evidence an abuse of the trial court's discretion. It was also stated that the amounts allowed were not supported by the evidence; that the amounts bore no relationship to the services rendered or to the reasonable value thereof; that the amounts allowed were contrary to the evidence; and that the hearing on the applications was had without any notice to many of the defendants, and without proper notice to any defendant. The motions were overruled, and distribution was ordered December 13, 1954. Defendants-appellants moved to set aside the order of distribution. The grounds stated in the motion were generally the same as stated in the former motions to set aside the allowances. The latter motion was also overruled, and the four defendants, appellants herein, have perfected this appeal.
In their statement of the ground on which the appellate jurisdiction of this court is invoked, appellants have said 'the amount in dispute, exclusive of costs, exceeds the sum of $7,500.' It is our initial duty to ascertain whether this court has appellate jurisdiction of the case.
As stated, the motions filed in the trial court went to the excessiveness or 'size' of the trial court's allowances and to the sufficiency of the evidence in supporting the amount of the allowances. No contention was made that plaintiff's counsel and the special commissioner were not entitled to reasonable or proper fees for their services. And the ground stated in the motions that defendants had had insufficient or no notice of the hearing on the applications has not been restated in appellants' allegations of error and points relied upon in their brief herein. Consequently, such ground or contention is to be considered abandoned, and no...
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Mitchell v. Mosher
...and another stop on our stoop. Compare Davis v. Ball, Mo.App., 271 S.W.2d 605; Heuer v. Ulmer, Mo., 273 S.W.2d 169; Haley v. Horwitz, Mo., 286 S.W.2d 796, 797(1). However, in the present posture of the case, we find no 'exceptional circumstances' which would enable us to escape the conclusi......
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Johnson v. Duensing, 47080
...this Court must appear from the record at the time the appeal is taken. Hemphill v. Jackson, Mo.Sup., 304 S.W.2d 7, 8(3); Haley v. Horwitz, Mo.Sup., 286 S.W.2d 796, 798; Lange v. St. Louis Public Service Co., Mo.Sup., 233 S.W.2d 641(1). We determine the issue of jurisdiction by an examinati......
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Haley v. Horwitz
...Supreme Court, on the ground that it lacked jurisdiction of the appeal, entered its order transferring the case to this court. Haley v. Horwitz, 286 S.W.2d 796. Plaintiff's attorney Thomas R. McGinnis testified in support of the motion for the allowance of attorney's fees. He stated that he......
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Albers Mill. Co. v. Carney
...merry-go-round would redeposit the unwilling riders litigant on our stoop [Heuer v. Ulmer, Mo., 273 S.W.2d 169; Haley v. Horwitz, Mo., 286 S.W.2d 796, 797(1)], we have neither right nor reason to borrow trouble and delay for the litigants by anticipating that their appellate briefs will wor......