Marsala v. Marsala

• Decision Date: 23 June 1921
• Docket Number: No. 22133.,22133.
• Citation: 288 Mo. 501,232 S.W. 1048
• Parties: MARSALA et al. v. MARSALA et al.
• Court: Missouri Supreme Court

232 S.W. 1048

288 Mo. 501

MARSALA et al. v. MARSALA et al.

No. 22133.

Supreme Court of Missouri, Division No. 2

June 23, 1921.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Fortunate Marsala and others against Maria Casaga Marsala and others. Prom an adverse judgment, the named plaintiff appeals. Reversed and remanded.

Julius C. Shapiro and Arthur N. Adams, both of Kansas City (Harry L. Jacobs, of Kansas City, of counsel), for appellant.

Warner, Dean, Langworthy, Thomson & Williams, of Kansas City, for respondents.

DAVID E. BLAIR, J.

This is an appeal from an order of the circuit court of Jackson county setting aside an order approving a partition sale of certain real estate made by a commissioner of that court.

The property involved is described as all of the east 50 feet of lots 1 and 2 and the east 50 feet of the north 40 feet of lot 3 in block 70 in East Kansas, an addition to Kansas City. The interests of the parties were determined by the court, and the property ordered sold by a commissioner. It is conceded that up to this point the proceedings were regular in all respects. The property was sold for $5,500, and the report of sale was approved by the court on June 12, 1019, at the May term, 1919 of said court, and distribution of proceeds ordered in accordance with their respective interests as theretofore determined. On August 16, 1919, or 65 calendar days thereafter, Fortunato Bonadonna and Borne Marsala Bonadonna, plaintiffs below, and defendants Maria Casaga Marsala and Frances Marsala, filed their joint motion to set aside the order of the court approving said sale. August 16, 1919, was during a temporary adjournment of the May term, 1919, of said court. Said motion to set aside the sale was not" acted on at said May term. As appears from the additional abstract of the record filed by respondents, on September 6, 1919, being the 43d day of the regular May term, 1919, of said court an adjournment order to court in course was entered, which provided that—

"All causes, motions, demurrers, and other matters now pending and undisposed of be, and they are hereby continued to the next term of this court."

On December 2, 1919, the same being the 18th day of the November term, 1919, of said court, said motion to set aside the order approving the report of sale was sustained, and such sale was set aside solely on the second ground stated in the motion, to wit, inadequacy of sale price, the first, third, and fourth grounds being found insufficient to set same aside.

Plaintiff Fortunato Marsala (appellant here) filed his motion for new trial on the motion to set aside the sale, and also in arrest of judgment, and same being overruled, has appealed. Numerous errors are assigned by appellant, but the view we take of the matter makes it unnecessary to consider more than one. The first assignment is that the court erred in setting aside the order approving the sale, because the motion to set same aside was filed out of time, and the court lost jurisdiction of the cause after the adjournment of the May term. We think appellant is clearly right in this contention.

Section 2001, R. S. 1919, provides that all pleadings and proceedings under the partition act shall be had as in ordinary civil cases. Where no independent provision is made in the partition act the general practice act governs. Cochran v. Thomas, 131 Mo. 258, loc. cit. 271, 33 S. W. 6. There is no special provision in the partition act governing the filing of motions for new trial.

[2, 3] The order...