Padgett v. Smith

• Decision Date: 29 June 1907
• Citation: 205 Mo. 122,103 S.W. 942
• Parties: PADGETT v. SMITH.
• Court: Missouri Supreme Court

103 S.W. 942

205 Mo. 122

PADGETT v. SMITH.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. WRIT OF ERROR—MOTION TO SET ASIDE SUBMISSION OF CAUSE—PROCEEDINGS.

A motion to set aside a submission of a cause and to reset the same for further argument will be stricken from the files where neither copies of the motion and brief thereon nor notice thereof were served on the adverse party.

2. SAME—REMEDY—STATUTES.

Under Rev. St. 1899, § 806 [Ann. St. 1906, p. 769], authorizing appeals from interlocutory judgments in actions of partition which determine the rights of the parties, and section 835 [Ann. St. 1906, p. 799], authorizing the issuance of writs of error on any final judgment, etc., a writ of error does not lie to review interlocutory judgments in partition.

3. SAME.

Where a judgment has been affirmed on appeal, the remedy by writ of error is not available.

Error to Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by Ervine F. Padgett, a minor, by guardian, against James H. F. Smith. There was an interlocutory judgment, and defendant sues out a writ of error. Writ quashed, and proceeding thereon dismissed.

See 89 S. W. 886.

E. R. Bartlett and O. D. Jones, for plaintiff in error. Higbee & Mills and Smoot, Boyd & Smoot, for defendant in error.

LAMM, J.

Ervine F. Padgett, by guardian, brought a suit to establish a resulting trust in his favor in certain lands in Scotland county, Mo., and for partition of said lands between him and Smith. An interlocutory judgment in partition, settling the interests of all parties, was rendered on the 10th day of November, 1903, in the Schuyler circuit court on change of venue. From that judgment, Smith appealed. Thereafter, for failure to comply with the statute (Rev. St. 1899, § 812 [Ann. St. 1906, p. 780]) and the rules of this court the judgment was affirmed here on June 2, 1904. On June 9, 1904, a motion to set aside the judgment of affirmance was filed. On June 22, 1904, that motion was overruled. On October 31, 1904, Smith sued out of this court a writ of error on the same judgment and the pending proceeding is on that writ. Later, plaintiff in error lodged here another motion to set aside the judgment of affirmance and submitted a brief in support of it. Later, on April 11, 1907, yet another motion to set aside the judgment of affirmance was filed, supported by a brief. Presently, after the cause had been submitted on briefs and argument, plaintiff in error filed a motion to set aside the submission and reset the case for further argument, which motion was accompanied by a brief.

1. The motion to set aside the submission and set down the case for further argument is stricken from the files; no copy of the motion and brief and no notice having been served upon defendant in error or his counsel.

2. The writ was improvidently sued out, because: (a) Error may be brought only on a final judgment. Rev. St. 1899, § 835 [Ann. St. 1906, p. 799]. A final judgment was not rendered until the 15th day of November, 1904, as shown by this record. Interlocutory judgments in partition may be reviewed in ...