Kelmel v. Nine

• Decision Date: 19 November 1906
• Citation: 97 S.W. 635,121 Mo. App. 718
• Parties: KELMEL v. NINE et al.
• Court: Missouri Court of Appeals

97 S.W. 635

121 Mo. App. 718

KELMEL v. NINE et al.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

1. WRIT OF ERROR—NOTICE—SERVICE—STATUTES.

A party suing out a writ of error, who gives to the adverse party a notice of appeal, does not give the notice required by Rev. St. 1899, § 852, requiring a person suing out a writ of error to cause notice thereof to be served on the adverse party or the writ shall be dismissed.

2. COURTS — COURT OF APPEALS — JURISDICTION.

The Court of Appeals has no jurisdiction to issue a writ of error in an action to quiet title to land.

3. WRIT OF ERROR—APPLICATION—PARTIES.

Under Rev. St. 1899, §§ 839, 840, providing that the parties against whom a judgment is rendered shall join in a writ of error or the same will be quashed, unless the party prosecuting the writ shows that persons not joined are either incapable of consenting, or that their consent cannot be obtained, etc., a writ of error applied for by one of several parties against who a judgment has been rendered, who does not assign any reason why the others have not joined, will be quashed on motion.

Error to Circuit Court, De Kalb County; A. D. Burnes, Judge.

Action by Mary E. Kelmel against W. F. Nine and others. There was a judgment in favor of plaintiff, and defendants bring error. Motion to dismiss writ of error granted.

Durall & Durall, for plaintiff in error. Sandusky & Sandusky, for defendants in error.

BROADDUS, P. J.

This suit was to quiet title to certain described lands mentioned in the petition. On the 10th day of October, 1904, the court found in favor of the plaintiff and against all the defendants, and rendered a judgment and decree that the plaintiff was the owner in fee of said lands, and that defendants had no right, title, interest, or estate whatever in or to the same, nor any part thereof, and further ordered and adjudged that she recover of defendants her costs. Defendants duly filed motion for new trial and in arrest of judgment. On February 15, 1905, these motions were severally considered by the court and overruled. On the 1st day of May, 1905, the defendant Nine only, in his own behalf, made and filed an affidavit for an appeal, and asking that an appeal be allowed to the Supreme Court. It does not appear that there was any order of the court granting such appeal. On the 18th day of October, 1905, the defendants sued out a writ of error from this court, returnable to the March term thereof for the year 1906. On October 2, 1906, the plaintiff filed her motion to dismiss the writ for the following reasons: First. Because no notice was served on her of the issuance of said writ, as required by law. Second. This court had no jurisdiction to issue said writ, and has no jurisdiction of this cause, for the reason that said cause involves...