Harrison v. Punch

• Decision Date: 10 April 1920
• Parties: HARRISON v. PUNCH et al.
• Court: Missouri Supreme Court

222 S.W. 132

HARRISON v. PUNCH et al.

Supreme Court of Missouri, Division No. 1.

April 10, 1920.

Rehearing Denied June 2, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Suit by Fred 0. Harrison against Soonie Punch and others. From a judgment for plaintiff, defendants Samuel A. Punch and others appeal. Affirmed.

Oliver & Oliver, of Cape Girardeau, for appellants.

Walter T. Gunn, of Danville, Ill., and R. P. & C. B. Williams, of St. Louis, for respondent.

GOODE, J.

Jasper Newton Punch died intestate in Stoddard county, Mo., on November 5, 1915, seized and possessed of lands in said county of considerable value. He left a widow, Soonie Punch, who is one of the defendants in this action, which was brought by the plaintiff to specifically enforce an oral contract by Jasper Newton Punch to adopt plaintiff and make him his heir; a contract alleged to have been made by Jasper Newton Punch with the mother and grandmother of plaintiff and to have been fully performed by them and by plaintiff. A further purpose of the suit was to have adjudged that the three half-brothers of Jasper Newton Punch had no interest in the lands to which they asserted title. If there was not an adoption of plaintiff as said Jasper Newton's son and heir, the half-brothers were his only heirs, and inherited an undivided one-half interest in the land In controversy, and the widow the other one-half, whereas if there was such a contract, and it is enforced, the half-brothers take nothing. A third object of the suit was to have the lands partitioned between plaintiff and Mrs. Soonie Punch, the widow.

It is needless to state more of the facts, because the abstract of the record is in such condition that we cannot look beyond the record proper, and that is free from error. The bill of exceptions neither sets out the motion for new trial in the case nor calls for it; hence exceptions taken during the trial cannot be considered. The motion for new trial is referred to in the" bill of exceptions( in practically the same words in which reference was made in a bill of exceptions to the like motion in the case of State ex rel. Peet v. Ellison, 196 S. W. 1103. In said case the effect of omitting to copy or call for the motion for new trial in the bill of exceptions was carefully considered, and the decisions in this state on the subject reviewed. That decision, as well as those referred to in the opinion in the case, determine that with such a reference to the...