Hall v. Gallemore

• Decision Date: 03 April 1897
• Citation: 138 Mo. 638,40 S.W. 891
• Parties: HALL v. GALLEMORE.
• Court: Missouri Supreme Court

40 S.W. 891

138 Mo. 638

HALL v. GALLEMORE.

Supreme Court of Missouri, Division No. 2.

April 3, 1897.

REVIEW ON APPEAL — TRIAL — OBJECTION TO EVIDENCE — SUFFICIENCY — LOST DEED — ADMISSION OF RECORDS — EJECTMENT — TITLE TO SUPPORT.

1. A statement in appellant's brief that "all the evidence, except one deed, is totally * * * incomprehensible," without specifying the evidence and showing an objection thereto, presents nothing for review.

2. An objection that certain evidence is immaterial is too general.

3. Evidence that plaintiff in ejectment had deposited his deed with a certain person three years before the trial, and that the latter had made several unsuccessful attempts to find it, was prima facie sufficient to warrant the introduction of the record of the deed.

4. A statement in the bill of exceptions that "plaintiff offers in evidence the record of the deed from the St. L. & S. Railroad Company to J., recorded in Book 14, page 303, conveying" certain described lots, is a sufficient recital of the conveyance, in the absence of any contest over its form or recitals.

5. In ejectment the prior peaceable possession of plaintiff under color of title, though short of

the statutory period, is sufficient, as against a mere trespasser who took possession during plaintiff's temporary absence.

Appeal from circuit court, Newton county; J. C. Lamson, Judge.

Ejectment by John N. Hall against William W. Gallemore. Judgment for plaintiff, and defendant appeals. Affirmed.

N. C. Gallemore and J. T. Sturgis, for appellant. Jas. H. Pratt, for respondent.

GANTT, P. J.

This is an action of ejectment for lots 15, 16, 17, and 18, in block 15, in Sturgis and Lane's addition to the city of Seneca, in the county of Newton, in this state, which plaintiff avers is his homestead. The ouster was laid on the 2d day of January, 1894. He also prays for damages to the amount of $1,000, and rents and profits at $5 per month. The answer is a general denial. The cause was tried at the November term, 1894, of the circuit court of Newton county. Both parties waived a jury, and submitted the case to the court for hearing. The trial court found the issues for the plaintiff, and rendered judgment for possession, and assessed the value of the monthly rents and profits at $5 per month from the rendition of judgment until possession be surrendered to plaintiff, and for costs. Within four days after judgment defendant filed his motions for new trial and in arrest of judgment, which were overruled, and defendant saved his exceptions, and in due time presented his bill of exceptions, which was signed and made a part of the record. The appellant assigns as error the admission of incompetent evidence and the refusal of his demurrer to the evidence.

1. As to the first assignment it is entirely too general. To say, as appellant does in his brief, that "all the evidence except one deed is totally incomprehensible," without specifying the evidence and showing an objection thereto, amounts to no assignment. It is true appellant does specify that he objected to plaintiff's proving that he claimed this homestead as exempt when it was sold, and demanded to have it assigned, because such evidence was immaterial. We have time and again ruled that such an objection amounted to no more than saying, "I object." Moreover, we do not agree that such evidence was necessarily incompetent. We can conceive of circumstances in which it would be necessary to rebut the claim of an estoppel that the execution debtor had waived his homestead exemption. The objection to the introduction of the record of the deed from the railroad company to plaintiff was properly overruled. Plaintiff proved that he had deposited his deed three years before the trial with a merchant in Seneca, and had made several attempts to find it, and the merchant had not been able to find it. This was prima facie sufficient. No other objection was made to the deed. The point now made by appellant, that the record does not show the character of that conveyance, is wholly without merit....