Mahaffey v. Lebanon Cemetery Ass'n.

• Decision Date: 06 December 1913
• Citation: 253 Mo. 135,161 S.W. 701
• Parties: MAHAFFEY v. LEBANON CEMETERY ASS'N.
• Court: Missouri Supreme Court

161 S.W. 701

253 Mo. 135

MAHAFFEY v. LEBANON CEMETERY ASS'N.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. APPEAL AND ERROR (§§ 516, 518, 529) — BILL OF EXCEPTIONS—RECORD PROPER.

The date of the institution of the action, together with the pleadings and judgment, constitute the record proper and need not be incorporated in the record by a bill of exceptions to be reviewed.

2. APPEAL AND ERROR (§ 584)—ABSTRACT OF RECORD—FORM OF STATEMENT.

Those matters presented in open court should be abstracted separately in the abstract from the things which become matters of record only because incorporated in the bill of exceptions, and the abstract of record properly grouped under "entries of the court" copies of the

pleadings and other matters going to make up the record proper after which, under the heading "end of record proper," the bill of exceptions was incorporated.

3. APPEAL AND ERROR (§ 586)—ABSTRACT OF RECORD—AFFIDAVIT FOR APPEAL.

A statement in the abstract that defendant filed in due form its affidavit for appeal to the Supreme Court, and the trial court finding the same sufficient, after approving the appeal bond, granted the appeal, sufficiently showed that a sufficient affidavit for appeal was filed.

4. APPEAL AND ERROR (§ 586)—ABSTRACT OF RECORD—ORDER GRANTING APPEAL.

A statement in the abstract of record that defendant filed in due form its affidavit for appeal, and the trial court finding the same sufficient after approving the appeal bond did grant said appeal, when taken with the presumption that the affidavit complied with the statute, sufficiently showed that the order for appeal was granted.

5. APPEAL AND ERROR (§ 586)—ABSTRACT OF RECORD.

The Supreme Court will read into the abstract of the record the certified copy of the judgment and order granting the appeal.

6. APPEAL AND ERROR (§ 653)—AMENDMENT OF ABSTRACT.

The Supreme Court may in its discretion in a proper case permit the amendment of an abstract of record after lapse of the time prescribed in the statutes and court rules for filing the abstract.

7. APPEAL AND ERROR (§ 653)—ABSTRACT OF RECORD—AMENDMENT.

Where respondent filed no briefs and promptly objected that the record entries in the abstract showing extension of leave to file the bill of exceptions so as to cover the time when it was filed, and the order showing that it was signed and filed, were untrue because the record did not contain such entries and verified his claim by filing a certified copy of the whole record, appellant will not be permitted to amend the abstract; there being no excuse for his negligence in its preparation.

8. QUIETING TITLE (§ 43)—ISSUES.

Where, in an action to quiet title, the petition alleged title generally in plaintiff and asked that the title of the parties be defined and adjudicated, and the answer was a general denial and special plea asserting title and prayed that title be adjudged in defendant, the whole title was in issue.

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

Action by J. M. Mahaffey against the Lebanon Cemetery Association. From a judgment for plaintiff, defendant appeals. Affirmed.

Suit instituted in the Laclede county circuit court at the August term, 1908, under the provisions of section 650, Revised Statutes of Missouri 1899, to ascertain and determine the estate, title, and interest of the parties to the N. ½ of lot 17, block 10, of the cemetery of the appellant. The petition states that plaintiff is the owner of the land with the right to possess and use it for burial purposes against all other persons whomsoever; that he purchased it from the appellant in 1901 for $10, which he fully paid and took possession of the half lot, buried one of his children on it, and held it until May, 1908; that he is informed and believes that the defendant is making some claim to the lot. The answer consists of a general denial, with a special plea, amounting, in substance, to a denial that the lot had been paid for and asserting that it had been forfeited under the rules of the association subject to which whatever right the plaintiff had was acquired. The answer asked the court, in substance, to adjudge the title in the appellant and that the plaintiff has no title or right of possession to the land. The cause was tried on August 13, 1908, during the same term at which it was instituted, and resulted in a judgment for the plaintiff, the substantial part of which is as follows: "It is by the court ordered and adjudged and decreed that the plaintiff purchased of the Lebanon Cemetery Association the following lot, viz., N. ½ of lot 17, block 10, in the Lebanon Cemetery Association, and took possession of the same and buried his child thereon, and that his right of burial remain in full force and effect. It is therefore ordered and decreed that the plaintiff has full burial privileges in the N. ½ of said lot and the exclusive right of interment on said N. ½ of said lot 17." From this judgment the defendant has appealed and brought the record here by the short transcript provided in section 2053, Revised Statutes 1909, and in due time filed his abstract of the record. The cause was docketed and set for hearing at the October term, 1912, in division No. 1, on October 17, the ninth day of the term, and was heard and submitted on that day.

The respondent in due time filed an additional abstract, and on October 8, 1912, filed his motion "to dismiss appeal or affirm judgment," a copy of which, with notice of his intention to file it, was served on appellant on October 2, 1912. It has been submitted and taken under advisement with the case. It states as grounds for such action: (1) That the printed abstract of the record proper fails to show that there was an affidavit for an appeal which complied with the law; (2) that it fails to show that there was an appeal granted by the court, or that such an order was ever spread upon the records of the court; (3) that it fails to show that the bill of exceptions was presented to and filed in the circuit court while in session, or that leave was given to file the bill of exceptions, or that it was ever signed or filed.

As a matter of fact, the abstract was constructed on the following plan: (1) A copy of the petition; (2) a copy of the answer; (3) a statement that the cause came on for trial on August 13, 1908, during the August term of the trial court, and a copy of the judgment. Preceding this copy are the following words: "The entries of the court are as follows." After the judgment comes a narrative statement of the filing of the motion for a new trial and its overruling on August 13, 1908; the same reference to the motion in arrest of judgment on the same date; then the following: "Appeal. Thereafter on said 13th day of August, 1908, and at said August term, 1908, the defendant, the Lebanon Cemetery Association, filed in due form its affidavit for appeal to the Supreme Court of Missouri, and the trial court finding the same sufficient (after approving the appeal bond) did on the same day last aforesaid grant said appeal to said Supreme Court." "Bill of Exceptions—Leave to File Same. Thereafter, on said August 13, 1908, and at the same term of the trial court last aforesaid, the trial court by its order duly entered of record proper, did grant to the defendant, the Lebanon Cemetery Association, to file its bill of exceptions in this cause `within one hundred and twenty days from the 13th...