Klotz v. Perteet

• Decision Date: 16 June 1890
• Citation: 13 S.W. 955,101 Mo. 213
• Parties: KLOTZ v. PERTEET.
• Court: Missouri Supreme Court

13 S.W. 955

101 Mo. 213

KLOTZ v. PERTEET.

Supreme Court of Missouri.

June 16, 1890.

APPEAL — EXCEPTIONS — MOTION FOR NEW TRIAL.

1. Errors assigned cannot be considered where motion for new trial was not made.

2. A bill of exceptions which the trial judge refused to sign, but certified was not true, and which was not signed by the by-standers, is not a bill within Rev. St. Mo. § 3635 et seq.

3. Refusal of trial by jury is only reviewable on exception.

4. Refusal of change of venue is reviewable only on exception.

Appeal from circuit court, Butler county; J. G. WEAR, Judge.

Petition for partition by Eli Klotz against Ewell Perteet. Defendant appeals.

C. D. Yancey, for appellant. Silver & Brown, for respondent.

RAY, C. J.

This is a suit in partition, (petition in usual form,) commenced originally in the circuit court of Reynolds county, but taken by change of venue, on the application of plaintiff, to the circuit court of Butler county. The case was tried by the court without a jury, and the issues found for plaintiff. The court found that the property could not be divided in kind, ordered a sale thereof, and approved the report of sale, and entered a final judgment partitioning the proceeds among the parties in interest. When the cause was regularly called for trial, the pleadings and issues being duly made up, the parties announced themselves ready for trial, and defendant thereupon demanded a jury to try the issues, and, after argument as to the right of defendant so to have a jury, the court refused same, holding that the suit in partition was properly triable by the court, and not by a jury. Objection was then made by counsel for defendant that the court ought not to try the case, and remarks, not necessary to now set out, were made in this behalf by counsel and by the court, after which the court directed the plaintiff to call his testimony, and a witness was called and appeared on the stand to be sworn for the cause, when counsel for defendant, with leave of court, held a brief consultation with his client, and thereupon filed a petition and affidavit for change of venue, upon the ground of the bias and prejudice of the judge, and that he had expressed an opinion in the cause. The case was, it seems, set for trial on the first day of the term, and was passed on that day because of the absence of both parties and their attorneys, and was again passed on the second day at the request of defendant's counsel; and the petition and affidavit for change of venue, as we have seen, were thus filed on the third day of the term, and were by the court then refused, whereupon the defendant abandoned the case, and tendered his bill of exceptions both as to the action of the court in refusing a jury, and in refusing the application for change of venue. The trial judge certified that the bill of exceptions presented to him was not a true bill, and then certifies thereon what the proceedings were, setting them out, and further certifying that the court had never known defendant, who lived in a different...