Lee's Summit Building & Loan Ass'n v. Cross

• Citation: 134 S.W.2d 19,345 Mo. 501
• Decision Date: 13 December 1939
• Docket Number: 35795
• Parties: Lee's Summit Building & Loan Association, a Corporation, v. Geraldine Cross, a Minor, by her Guardian and Curator, L. S. Worrell, Appellant
• Court: Missouri Supreme Court

134 S.W.2d 19

345 Mo. 501

Lee's Summit Building & Loan Association, a Corporation, v. Geraldine Cross, a Minor, by her Guardian and Curator, L. S. Worrell, Appellant

No. 35795

Supreme Court of Missouri

December 13, 1939

Appeal from Jackson Circuit Court; Hon. Daniel E. Bird Judge.

Reversed and remanded (with directions).

J B. McFarland and Walter A. Raymond for appellant.

(1) The issues herein directly involve title to real estate. Appellate jurisdiction is therefore in this court. Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W.2d 66; Overfield v. Overfield, 326 Mo. 83, 30 S.W.2d 1075; Roth v. Roth, 104 S.W.2d 315; Devoto v Devoto, 326 Mo. 511, 31 S.W.2d 807; Hull v. McCracken, 1 S.W.2d 205; Weller v. Searcy, 111 S.W.2d 208; Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 774. (2) Respondent's grantor, Fred C. Cross, accepted the benefits of the will of his wife, Anna M. Cross, in California. He and his grantee, the respondentent, are therefore bound by the California election and have no right, title, or interest in the Jackson County, Missouri land which was specifically devised to appellant by the will of Anna M. Cross. Colvin v. Hutchinson, 338 Mo. 576, 92 S.W.2d 670; Bernays' Estate v. Major, 126 S.W.2d 216. (3) The trial court abused his judicial discretion in refusing to set aside the interlocutory judgment in partition and denying this infant appellant a hearing as to the equities of said partition. Devoto v. Devoto, 326 Mo. 511, 31 S.W.2d 807; Devoto v. Devoto, 39 S.W.2d 1084; Carson v. Hecke, 282 Mo. 580, 222 S.W. 855; Gray v. Clement, 296 Mo. 497, 246 S.W. 942; Lester v. Tyler, 69 S.W.2d 638; Wauchope v. McCormck, 158 Mo. 660, 59 S.W. 972.

M. J. Henderson, Thos. E. Deacy and Ben W. Swofford for respondent.

(1) Appellant has failed to perfect her appeal herein under the statutes of Missouri and the appeal therefore should be dismissed. (a) Procedure on appeal is statutory. The provisions of the statutes must be strictly complied with. Pfotenhauer v. Ridgeway, 307 Mo. 529, 271 S.W. 50; Magee v. Mercantile Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614; Stephens v. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899; Boyd v. Logan-Jones D.G. Co., 335 Mo. 947, 74 S.W.2d 598; State ex rel. Kansas City Stock Yards Co. v. Trimble, 333 Mo. 51, 62 S.W.2d 473. (b) Appellant is given the right under the Missouri statutes to appeal in this case either from the interlocutory judgment of January 13, 1937, or from the final judgment in partition of April 17, 1937, and her appeal from either of these judgments is governed by the general statutes on civil procedure. Secs. 1018, 1553, R. S. 1929. (c) Nothing is before the court on appeal from the interlocutory judgment because the appellant failed to file a motion for a new trial within four days after the rendition of the judgment and failed to file her application and affidavit for appeal within the judgment term or before the said interlocutory judgment became merged with the final judgment in partition. The appeal, if attempted from the interlocutory judgment, should, therefore, be dismissed. Secs. 1005, 1020, R. S. 1929; Romine v. Haag, 178 S.W. 147; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; 3 C.J. 432, sec. 256; Banks v. Guinyard, 58 So. 229, 63 Fla. 334; Bates v. Holbrook, 85 N.Y.S. 673; Frank v. Rowland & Shafto, Inc., 153 N.Y.S. 926; Drake v. Scheunemann, 79 N.W. 749, 103 Wis. 458; Harkam v. Benson, 160 N.W. 80, 135 Minn. 23; Poxson v. Poxson, 245 N.W. 536, 260 Mich. 625; Smith v. Illinois Bell Tel. Co., 46 S.Ct. 408, 270 U.S. 587; Graustein v. Dolan, 185 N.E. 489, 282 Mass. 579; In re Receivership Bank of Hamburg, 214 N.W. 561, 203 Iowa 1399; Jones v. Industrial Life & Health Ins. Co., 132 So. 890, 22 Ala. 399; Rhame v. Kirkland Seed Co., 152 S.E. 825, 156 S.C. 89; Alderman v. New Smyrna Beach, 180 So. 516, 131 Fla. 777; Twitchell v. Risley, 107 P. 459, 56 Ore. 226; Dalton v. Simpson, 193 S.W. 546, 270 Mo. 287; Virgin v. Kennedy, 326 Mo. 400, 32 S.W.2d 91; Aull v. Day, 133 Mo. 337, 34 S.W. 578. (d) On an appeal from the final judgment in the case at bar nothing is before the court except the record proper for the reason that the appellant did not file a motion for a new trial within four days after the rendition of said judgment and thereby failed to preserve any matters of exception or error for review. There is nothing presented by the record proper which would warrant this court in disturbing the judgment of the court below. Sec. 1005, R. S. 1929; Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527; Saxton Natl. Bank v. Bennett, 138 Mo. 494, 40 S.W. 97; Cox v. Schaab Stove & Furn. Co., 332 Mo. 492, 59 S.W.2d 700; Laudau v. Consumers Mill Prod. Co., 36 S.W.2d 921; Spotts v. Spotts, 331 Mo. 942, 55 S.W.2d 984; Primeau v. Primeau, 317 Mo. 828, 297 S.W. 382; Marsala v. Marsala, 288 Mo. 501, 232 S.W. 1048; St. Louis v. Boyce, 130 Mo. 572, 31 S.W. 594; St. Louis v. Glennon, 299 S.W. 205. (2) The defense that Fred C. Cross had accepted the benefits of the will of his wife, Anna M. Cross, in California, was not available to the defendant, Geraldine Cross, for the reason that it was not pleaded in defendant's answer and was not properly admissible in evidence. Colvin v. Hutchison, 338 Mo. 576, 92 S.W.2d 667; Kinloch Tel. Co. v. St. Louis, 268 Mo. 485, 188 S.W. 182; Brown Const. Co. v. MacArthur Bros. Co., 236 Mo. 41, 139 S.W. 104; McLain v. Mercantile Trust Co., 292 Mo. 114, 237 S.W. 506; Mo. Cattle Loan Co. v. Great Southern Life Ins. Co., 330 Mo. 988, 52 S.W.2d 1; Creek v. Gideon & N. I. Ry. Co., 293 Mo. 541, 240 S.W. 128; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28; State ex rel. Consolidated School Dist. v. Haid, 328 Mo. 729, 41 S.W.2d 806; Casler v. Gray, 159 Mo. 588, 60 S.W. 1032; Keeney v. McVoy, 206 Mo. 42, 103 S.W. 946; Groom v. Morrison, 249 Mo. 544, 155 S.W. 430. (3) The defense of estoppel is not available to the defendant, Geraldine Cross, for the reason she did not plead or prove the California law and made no showing that Fred C. Cross had any right of election under the California law to accept or reject the terms of the will of his wife, Anna M. Cross. Bennett v. Lohman, 292 Mo. 477, 238 S.W. 792; Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591; Milburn v. C., M., St. P. Ry. Co., 331 Mo. 1171, 56 S.W.2d 80; State ex rel. Burnes Natl. Bank v. Duncan, 302 Mo. 130, 257 S.W. 784; In re Rogers Estate, 250 S.W. 576.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action (in two counts) to determine title to and for partition of forty acres of land in Jackson County. Appellant claimed the whole title under her mother's will but the court found that plaintiff owned a one-half interest and ordered partition. This appeal is from the final judgment confirming the report of commissioners dividing the land.

Plaintiff contends that there is nothing here for review except the record proper because appellant did not file a motion for a new trial within four days after the rendition of the final judgment. The first hearing of evidence in this case was during the November, 1936, term. The interlocutory judgment in partition (finding plaintiff and appellant each entitled to an undivided one-half interest in the land and the other defendants who did not appeal entitled to nothing) was entered January 13, 1937, at the January, 1937, term. Commissioners were appointed to make partition as ordered.

Appellant filed a motion to set aside this interlocutory judgment on March 25, 1937, at the March, 1937, term, alleging that appellant's, first knowledge of the rendition of the interlocutory judgment was obtained during the March, 1937, term. One of the grounds stated in this motion was the following:

"Fifth, that defendant has a good and meritorious defense to plaintiff's cause of action in that she was the daughter of Anna M. Cross, who died testate in Los Angeles County, California, in June, 1926 and who left a will, a copy of the will aforementioned marked Exhibit 'A,' attached hereto and made a part hereof, devising to her father, Fred C. Cross, certain properties and holdings in Los Angeles County, California, and devised to this defendant the property in question and set out in plaintiff's petition (describing this 40 acres) the fee title of which was vested in her said mother at the time of her death; that her father, Fred C. Cross, caused said will to be probated and proven in Los Angeles County, California, and accepted the terms thereof and took under the said will in Los Angeles, California, where same was probated, a copy of said proceedings marked Exhibit 'B,' filed herewith and made a part hereof; that thereafter and about the 28th day of November, 1927, without this defendant's knowledge, defendant Fred C. Cross, her father, whose interest was adverse to this defendant's had said estate probated in Jackson County, Missouri, and wrongfully and unlawfully attempted to renounce the will of said Anna M. Cross, deceased, and elected to take a child's part, of which fact this defendant was never advised; and that by virtue of the laws of the State of Missouri said defendant, Fred C. Cross, could not accept the benefits and take under the will of Anna M. Cross, deceased, in another state, or in California, and come to Missouri and renounce same and take a child's part to defeat the rights of this minor defendant in the inheritance in and to said property as provided by said will; and that in law and good conscience the fee title to said property in question . . . is and should be vested in this defendant."

Evidence was heard on this motion at the March, 1937, term, on March 27th, and this motion was then overruled; and on March 20th during the March, 1937, term, the report of commissioners was filed, setting off to ...