Lilly v. Menke

• Decision Date: 22 December 1894
• Citation: 28 S.W. 994,126 Mo. 190
• Parties: LILLY et al. v. MENKE et al.
• Court: Missouri Supreme Court

28 S.W. 994

126 Mo. 190

LILLY et al. v. MENKE et al.

Supreme Court of Missouri.

December 22, 1894.

PARTITION — VARIANCE — APPEAL.

In partition, a variance between the petition and the judgment as to the amount of plaintiff's undivided interest will not be considered on appeal, where the question was not raised in the trial court. Per Barclay, J., dissenting.

Dissenting opinion. For majority opinion, see 28 S. W. 643.

BARCLAY, J.

This is an action for the partition of certain land. Defendants answered. Plaintiffs afterwards amended their petition, but defendants did not file any other answer thereto. When the case was duly reached for trial, plaintiffs took default, and introduced their evidence, upon which the court found the interests of the respective parties in the land, and passed an interlocutory decree defining those interests. The court also so appointed three commissioners to make partition. During the trial, both defendants appeared, and, at their suggestion, were sworn, and testified on their own behalf. The defendants filed a motion for new trial and a motion in arrest of judgment, both of which the court overruled. They appealed to the supreme court, November 11, 1891, and took time to file a bill of exceptions, but no such bill was ever filed. At a later term the report of the commissioners in partition was made. Upon confirmation thereof, the court entered a final decree ascertaining the interests of the parties in certain parcels of the land mentioned, and directing a sale of the residue, etc. No exceptions were taken to the commissioners' report. The defendants at the same term took another appeal to the supreme court. That is the one now under consideration. No motion of any kind, looking to a review of the proceedings in the trial court, was filed at the term of the final decree.

Several questions have been raised in this court upon the record proper. The case is the culmination of the litigation reported in its earlier stages, — 82 Mo. 418, and 103 Mo. 477, 15 S. W. 618. Defendants claim that the facts stated in plaintiff's petition do not support the finding which the court entered, and on which the judgment rests. It is not contended that the petition fails to state a cause of action. The contention is that, on the facts in plaintiffs' amended petition, plaintiffs were only entitled to one-fourth of the estate sought to be partitioned, instead of one-half, as the court found and adjudged. Plaintiffs resist defendants' effort to obtain a review of such a question, thus sought to be raised in this court. It seems to me that the spirit of our Code of Procedure requires parties to bring before the trial court such a question as that now presented.

1. Under the constitution of Missouri, the jurisdiction of the supreme court, in a case like this, is appellate by nature. Const. 1875, art. 6, § 2. What is meant by "appellate jurisdiction"? For answer, let us note what was written on that point by Chancellor Kent, with the concurrence of the whole court of errors in New York, many years before the adoption of the present Code of Procedure: "A party acts against good conscience if he will not come forward and disclose his reasons, when called upon by the proper tribunal, but reserves himself for another court, and for the cold, hard purpose of accumulating costs, or of depriving his adversary of the opportunity of correcting his error." Gelston v. Hoyt (1816) 13 Johns. *576. He further declared in that case that: "The very theory and constitution of a court of appellate jurisdiction only is the correction of errors which a court below may have committed; and a court below cannot be said to have committed an error when their judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned by the acquiescence or default of the party who raised it. To assume the discussion and consideration of a matter of law which the party would not discuss in the supreme court, and which that court, therefore, did not consider, is to assume in effect original jurisdiction. It is impossible to calculate all the mischiefs to which such a course of proceeding would lead." Id. *577. These views are approved in Flake v. Van Wagenen (1873) 54 N. Y. 27. The statutes of Missouri do not indicate any purpose to de part from the general principles of law which the above quotation expresses. On the contrary, it is declared by section 2303 that this court "shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action." Rev. St. 1889, § 2303. Our law provides for a motion in arrest of judgment in the trial court. Rev. St. 1889, § 2243. It further declares that "when a judgment shall be arrested, the court shall allow the proceedings, in which the error was, to be amended, in all cases when the same amendment might have been made before the trial, and the cause shall again proceed according to the practice of the court" (Rev. St. 1889, § 2244); but "in such case the party in whose proceeding the first error was, shall pay all costs incurred thereby" (Rev. St. 1889, § 2245). By the motion in arrest a litigant may take advantage of any material error in the record proper, and the adverse party is then only put to costs in the trial court to correct it. But if one party might, in the supreme court, spring, for the first time, a question of law arising on the record, and have his objection sustained on some phase of the case never presented to the circuit court, the practical effect of that ruling would be to cast upon the adverse party the costs of the appeal, when he might have conceded the point had it been suggested in the trial court. He could have corrected it there, without the great expense of coming to a court of review. How can it be said, in view of section 2303, above quoted, that the trial court committed error upon a point which was never submitted for a ruling? In New York, where we obtained our Code of Practice, it is the settled construction of the law that no such questions as are now submitted can be first raised on appeal. Delaney v. Brett (1872) 51 N. Y. 78; Knapp v. Simon (1884) 96 N. Y. 284; Cunningham v. Fitzgerald (1893) 138 N. Y. 164, 33 N. E. 840. The same rule prevails in other jurisdictions. Robertson v. Robinson (1880) 65 Ala. 610; Linden v. Green (1890) 81 Iowa, 365, 46 N. W. 1108; Shell v. Boyd (1890) 32 S. C. 359, 11 S. E. 205; Needham v. King (1893) 95 Mich. 303, 54 N.W. 891; Perez v. Barber (N. M.; 1893) 34 Pac. 190. The idea of allowing a close scrutiny of the record proper upon writ of error is supposed to be sanctioned by the principles of the common law. It is not necessary to examine into that, at present. See State v. Scott (1891) 104 Mo. 32, 15 S. W. 987, and 17 S. W. 11. But it may be remarked, in passing, that the rule applied in this case by my learned associates appears to receive no approval in Pennsylvania or Illinois, whose existing systems of pleading are, in the main, derived from the common law. Eckert v. Schoch (1893) 155 Pa. St. 531 26 Atl. 654; McLaughlin v. Hinds (1894) 151 Ill. 407, 38 N. E. 136. In the case in hand, however, the petition states a good cause of action. No one denies that. The defect pointed out is simply this: that the interest of the plaintiffs in the land was found to be greater than the facts alleged warranted, according to defendants' theory. Yet that point was never suggested in the circuit court, so far as we can see, at any time. A motion in arrest was filed there. Let us suppose that it assigned the single ground that the petition did not state a cause of action. If that was its purport,the court was entirely right in overruling it. Were other points, that might have been made in that motion, waived by the omission to make them, or were they nevertheless kept safe for future use in some other court? There should be but one answer to these queries, namely, that if defendants ever intended to object to the amount of the finding which the trial court made, they should have objected to it in some form in that court. It has been very generally held in recent years in Missouri that all objections to proceedings at the trial are waived if not presented for correction by motion for new trial. The same principle should be applied where the alleged error consists in making a wrong deduction, by way of finding, as to the amount of land which plaintiffs are adjudged to own, when the adverse party affected thereby has neither objected to that action nor asked the trial court to correct it while it had the power.

2. The Missouri decisions are not harmonious on this subject. In many cases it has been observed in a general way, and in others distinctly held, that the record proper may be reviewed for errors on appeal. My learned Brother GANTT has mentioned some of them, beginning with a criminal case in 8 Mo. 495 (McGee v. State). In criminal cases that rule is now established by statute. Rev. St. 1889, § 4297. In those cases, too, the trial court may arrest the judgment without motion, on its own view of any substantial error in the record. Id. § 4272. But as to civil cases many precedents in this state appear to require that such questions as are presented on this appeal should first be ruled upon by the trial court before becoming proper matters for review elsewhere. There is, it is true, conflict in the Missouri decisions; but the proposition just stated has abundant support in our cases, and it furnishes a rule more in harmony with the true theory of appellate jurisdiction, as well as more just to litigants and to the trial courts, than is the opposite doctrine. As early as Davis v. Scripps (1830) 2 Mo. 187, it was said that: "If the court erred as a jury, the mode of redress is to ask for a new trial, and, if that is improperly refused, the wrong may be...