Mahaffey v. Lebanon Cemetery Association

• Decision Date: 06 December 1913
• Citation: 161 S.W. 701,253 Mo. 135
• Parties: J. M. MAHAFFEY v. LEBANON CEMETERY ASSOCIATION, Appellant
• Court: Missouri Supreme Court

161 S.W. 701

253 Mo. 135

J. M. MAHAFFEY v. LEBANON CEMETERY ASSOCIATION, Appellant

Supreme Court of Missouri, First Division

December 6, 1913

Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

W. I Wallace and Silver & Dumm for appellant.

L. C Mayfield for respondent.

OPINION

BROWN, C.

Suit instituted in the Laclede Circuit Court at the August term, 1908, under the provisions of section 650, Revised Statutes 1899, to ascertain and determine the estate, title and interest of the parties to the north half of lot seventeen, block ten 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 ten dollars 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.: North half of lot seventeen (17), block ten (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 north half of said lot and the exclusive right of interment on said north half of said lot seventeen (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 17th, 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 leave 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 day of September, 1908,' which leave to file said bill of exceptions was thereafter, on November 4, 1908, extended by the court, with the consent of the parties to this cause to February 10, 1909.

"And the defendant, the Lebanon Cemetery Association, on February 6, 1909, and within the time so allowed by the court, did present to the court its bill of exceptions and the same was signed by the Hon. L. B. Woodside, judge thereof, and was duly filed on said February 6, 1909, as shown by the record entry of the court."

Then the following words: "End of record proper." Then follows the bill of exceptions, preceded by the statement: "Filed by entry of record proper February 6, 1909." The bill of exceptions contains everything generally incorporated in such a paper, including the evidence, the court's finding of facts, the instructions given and refused, the motion for a new trial and in arrest of judgment, the exceptions, and closes without signature, and with the following words:

"And thereafter and at the same term of the trial court, at which said motion in arrest of judgment was filed, court overruled said motion and to its action in so doing defendant thereupon objected and excepted.

"Said bill of exceptions was duly signed on the 6th day of February, 1909, by L. B. Woodside, circuit judge, and was duly filed on the same day as part of the record in this cause."

Respondent's additional abstract consisted of a certified copy of the entire record, showing that the only order of the court referring in any manner to the bill of exceptions is, omitting caption, as follows:

"Now on this day comes the defendant herein, by attorney, and files motion in arrest of judgment in this cause, which is by the court overruled, and 120 days allowed defendant to file their bill of exceptions in this cause."

On October 15th the appellant filed an application to amend his abstract so as to show that the time for filing the bill of exceptions was extended by order of Judge Woodside of the Laclede Circuit Court, and not by the court. This was supported by affidavit of Mr. Edwin Silver saying that the error had been made by him through a misapprehension of the facts and not with any intention of deceiving or misleading the court. Two days after the submission of the case in this court, and on October 19, 1912, the appellant gave to one of the judges a certificate of the clerk of the trial court to the effect that the bill of exceptions had been filed with the clerk of that court on February 6, 1909, and at the same time filed with the clerk of this court an application to amend his abstract so as to show that fact.

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