Hall v. Harris

• Decision Date: 17 October 1898
• Citation: 145 Mo. 614,47 S.W. 506
• Parties: HALL et al. v. HARRIS et al.
• Court: Missouri Supreme Court

47 S.W. 506

145 Mo. 614

HALL et al. v. HARRIS et al.

Supreme Court of Missouri, Division No. 2.

October 17, 1898.

CHANCERY CASE — VERDICT — INSTRUCTIONS — SUBMISSION OF ISSUE — STATUTE OF FRAUDS.

1. The verdict in a chancery case being merely advisory, error cannot be predicated on its being against the law and evidence.

2. Error cannot be predicated on instructions to the jury in a chancery case, decree of the court not being dependent on their correctness.

3. Submission of issue to jury in chancery case being discretionary with the court, error cannot be predicated thereon, or on the form of the issue.

4. Where defendant's intestate induced plaintiff to become his housekeeper, and take care of him, by promise to convey, in consideration thereof, certain land, full performance by plaintiff takes the agreement out of the statute of frauds, so that it may be enforced, testator having died without making conveyance.

Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Suit by Sarah J. Hall and her husband against Elizabeth J. Harris and another. Decree for plaintiffs. Defendants appeal. Affirmed.

R. S. Matthews, Otho F. Matthews, and L. A. Thompson, for appellants. Dysart & Mitchell, for respondents.

GANTT, P. J.

This is an appeal from a decree of the Macon circuit court enforcing the specific performance of a contract made by David B. Harris in his lifetime with his daughter, Mrs. Sarah Jane Hall, to convey to her 20 acres of land in Macon county, described as the W. ½ of the N. W. ¼ of the N. E. ¼ of section No. 12, township 57, range 13, in consideration of services rendered by Mrs. Hall to her father in nursing and waiting upon him at intervals from 1885 to 1894. A jury was impaneled to try "the single issue whether, in the lifetime of David B. Harris, he contracted to sell and convey said 20 acres of land to the plaintiff Sarah J. Hall for services rendered and to be rendered by her, and whether she had performed said services and performed the conditions on her part," which issue the said jury found in favor of the plaintiffs. The verdict of the jury was approved by the chancellor, and a decree rendered enforcing said contract against defendants, who are the devisees of said David B. Harris. In due time the following motion for new trial was filed, heard, and overruled: "Sarah J. Hall and Edwin Hall, Her Husband, Plaintiffs, vs. Elizabeth J. Harris and Lewis G. Harris, Defendants. Now comes the defendants in the above-entitled cause, and moves the court to grant a new trial for the following reasons: (1) The court erred in permitting any evidence on the part of the plaintiffs on their petition over objections of the defendants. (2) The court erred in admitting improper evidence on the part of the plaintiffs over the objection of defendants. (3) The court erred in submitting the case to be tried by a jury. (4) The court erred in not submitting definite issues to be tried by the jury. (5) The court erred in his instructions given on the part of the plaintiffs. (6) The verdict is against the law governing the case. (7) The verdict is against the evidence in the case. (8) The verdict is against the weight of evidence in the case. For these causes the plaintiffs ask that a new trial be granted in the above-entitled case."

Respondents insist that no case is made for review, because the motion for new trial makes no complaint whatever of the finding of facts by the circuit court, or the sufficiency of the evidence on which the decree is founded, but is confined entirely to the action of the jury. The essential underlying principle of appellate procedure is that it revises and corrects the proceedings of an inferior or subordinate court or tribunal in a cause or matter already heard and acted upon, and among the well-established rules of appellate practice in civil cases is that which asserts that only those errors to which the attention of the court of original jurisdiction was called on a motion for new trial or rehearing will be reviewed by the appellate court unless such errors appear upon the record proper. Ross v. Railroad Co., 141 Mo. 390, 38 S. W. 926, and 42 S. W. 957; Haynes v. Town of Trenton, 108 Mo. 123, 18 S. W. 1003. This rule is emphasized in Missouri by statutory enactment. Section 2302, Rev. St. 1889, expressly provides that no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court except such as shall have been expressly decided by such court. With these guides before us, let us determine what there is to review. The sixth, seventh, and eighth grounds of the motion assail the verdict of the jury. If the verdict in this case constituted the basis of the decree, these objections might avail, but the verdict of a jury in a chancery case under our practice is merely advisory. It is not binding upon the chancellor. He may approve or reject it. It cannot, in the nature of things, be essential to his decree, and, not being, it is immaterial whether the verdict was against the law of the case, or the evidence submitted to the jury, or the weight of the evidence. Bevin v. Powell, 83 Mo. 365; Gay v. Ihm, 69 Mo. 584; Hickey...