Long v. Hawkins

• Decision Date: 25 November 1903
• Citation: 77 S.W. 77,178 Mo. 103
• Parties: LONG v. HAWKINS et al.
• Court: Missouri Supreme Court

77 S.W. 77

178 Mo. 103

LONG v. HAWKINS et al.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

NEW TRIAL — TIME FOR MOTION — APPEAL — FAILURE TO PERFECT.

1. The four days after the trial in which Rev. St. 1899, § 803, requires motion for new trial to be filed, that matters of exception may be reviewed on appeal, are calendar days, not court days.

2. By express provision of Rev. St. 1899, § 812, failure to perfect the appeal in the prescribed time is cause for affirmance, unless good cause to the contrary be shown.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by A. S. Long against Jacob M. Hawkins and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Crites & Garrison and Arthur Corse, for appellant. Thos. M. & Cyrus H. Jones, for respondents.

MARSHALL, J.

This is a bill in equity by the plaintiff, as assignee of one William Kinnard, to redeem a certain tract of 110 acres of land in Phelps county. The petition charges that Kinnard was indebted to the Rolla National Bank in the sum of $500, which was represented by a note, on which the defendant Hawkins was security and indorser, and that, to protect Hawkins, Kinnard, in 1892, executed a quitclaim deed to the land to Hawkins, upon the agreement that the land should be held as such security, and should be reconveyed upon Kinnard paying the debt to the bank — that is, that though in form the conveyance was a deed, in reality it was only a mortgage; that on June 5, 1897, Hawkins conveyed the land to the defendants Ballance and Walker, and they conveyed a life estate therein to Martha Ballance, but that they all took with notice that the conveyance from Kinnard to Hawkins was only a mortgage; that in September, 1897, Kinnard conveyed the land to the plaintiff; that on June 5, 1897, Hawkins paid the debt of Kinnard, for which he was security, to the bank, amounting to $509; and the bill tenders that sum, with interest, to the defendants, and asks leave to redeem, and that the deeds aforesaid be canceled, and the title be adjudged to the plaintiff. The answer admits the several conveyances, but denies that the deed from Kinnard to Hawkins was in reality a mortgage, and alleges that it was a conveyance in consideration of $825 paid by Hawkins to Kinnard, sets up a misdescription in the deed as to 30 acres, asks a reformation of the deed, and for possession of the land, damages, rents, and profits. The replicaton reaffirms the statements of the petition.

It appears that the defendants had a suit in ejectment for the land pending against the plaintiff and Kinnard, and that by consent the two cases were consolidated and tried together. The trial court entered judgment on March 31, 1898, which was at the March term, 1898, for the defendants Murphy, Ballance, and Walker, corrected the error in the deed as to the 30 acres, awarded the possession to the defendants, and fixed the rents and profits at $6.50 a month. The record shows that the next entry was on April 2, 1898, which was of the filing of an agreement...