Nelson v. Nelson

• Decision Date: 05 April 1888
• Parties: JAMES NELSON, Appellant, v. WILLIAM NELSON et al., Respondents.
• Court: Kansas Court of Appeals

30 Mo.App. 184

JAMES NELSON, Appellant, v. WILLIAM NELSON et al., Respondents.

Court of Appeals of Missouri, Kansas City.

April 5, 1888

APPEAL from Montgomery Circuit Court, HON. E. M. HUGHES, Judge.

Affirmed.

The case and facts are stated in the opinion of the court.

JOHN M BARKER, for the appellant.

I. The court erred in overruling the plaintiff's motion asking that defendants' appeal to the circuit court be dismissed. The plaintiff was entitled to the protection granted him by section 2476, Revised Statutes, 1879, before the justice had any right to grant the appeal, and the bond taken under section 3042, was insufficient. The appeal was taken only by Wm. C. Nelson, and the appeal, so far as Martin Nelson and Virjane Nelson was concerned, ought to have been dismissed, even though Wm. C. Nelson's appeal was allowed to stand.

II. The court erred in giving and in refusing instructions; it was highly improper to suggest that the plaintiff was using the gate after his expulsion and while the plaintiff was litigating this cause.

III. The court erred in rendering judgment for all three of the defendants, when only one of them had appealed. The court erred in refusing to enter judgment for plaintiff. The plaintiff's acquisition of the road held was obtained by the expenditure of labor, money, and improvements--in this case he became a purchaser for value. Mayor v Franklin, 2 Am. Law Reg. [O. S.] 318. The plaintiff purchased the strip of ground, paid for it, it was severed from the defendants' farm and given over to the plaintiff as completely and absolutely as though it belonged to plaintiff.

IV. The theory that the possession of the land on which an easement may be attached is invariably in the possession of the owner of the fee, is not sustained by our Supreme Court. In the case of Armstrong v. City, 69 Mo. 309, Armstrong had the title to the land, and the city of St. Louis had the possession, and only as a street. This decision emphasizes the rule that presumptions must give way to facts to the contrary.

V. But however this point may be decided, it is now insisted that the judgment ought to be reversed because the appeal bond was not in accordance with the statute, and because the court ought to have dismissed the appeal on account of the defective bond (on appellant declining to file a good bond), and because judgment was rendered in favor of parties who had not appealed. Had the bond been in accordance with law, it would have been proper to have allowed Wm. C. Nelson to proceed with his appeal alone, but not otherwise. For the reasons above assigned, this court is asked to reverse the judgment of the lower court.

J. D. BARNETT, for the respondents.

I. Plaintiff's motion to dismiss the appeal of defendants was properly overruled. The motion was too late. Plaintiff had recognized the validity of the appeal, and made no objection during two terms of court. The bond filed by defendants under section 3042 substantially protects plaintiff to the same extent as a bond according to terms of section 2476, Revised Statutes. In any event plaintiff had in jeopardy but four cents adjudged in his favor by the justice. Such a motion filed on the eve of the trial, after all the expense and preparation had been made, is frivolously trifling with the court.

II. The appeal was taken by all the defendants. An inspection of the justice's transcript, the affidavit in appeal, and the appeal bond, shows conclusively that W. C. Nelson acted for all of his co-defendants in taking the appeal. After the appellee has appeared to the case generally in the circuit court it is too late to raise the question at the third trial term.

III. Plaintiff's evidence shows affirmatively that he was not in possession of the land in controversy. He claimed to have a perpetual roadway and right of passage over the land and nothing further. This is simply an easement of way. Possession cannot be predicated of an incorporeal hereditament.

IV. As plaintiff used the roadway after the obstruction and before the bringing of this suit and after that continuously up to the day of trial in the circuit court, upwards of a year, there can be no recovery in this action as there is no proof of any such detainer as the statute contemplates.

V. The only point in this case on which appellant can make a shadow of an argument is the defect in the appeal bond from the justice. It is a defect unquestionably, but not of a nature to injuriously affect the plaintiff. Had the motion been filed in time, no doubt the court would have required defendants to file a new bond. But being filed on the trial day, the court properly overruled it, and tried the case on its merits. To have done otherwise would have been straining at a gnat. The bond objected to protected plaintiff in every substantial right that he had. Possibly it did not, though I think it did cover the judgment of the justice in plaintiff's favor for four cents. The docket of a trial court ought not to be disarranged on such a pretext.

HALL J.

This was an action for forcible entry and detainer begun before a justice of the peace. The plaintiff had judgment against all the defendants for the recovery of the land, for two cents as damages, and for two cents as...