Padgett v. Smith

CourtUnited States State Supreme Court of Missouri
Writing for the CourtLamm
Citation205 Mo. 122,103 S.W. 942
PartiesPADGETT v. SMITH.
Decision Date29 June 1907
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...

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12 practice notes
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...128 Mo. 150, 30 S.W. 343; Levine v. Marchisic, 270 S.W. 643; State ex rel. Knisley v. Board of Trustees, 186 S.W. 680; Padgett v. Smith, 205 Mo. 122, 103 S.W. 942. (5) Under Section 847.17 of the Civil Code, R.S. Ann., 1939, Laws of Missouri, 1943, page 361, the court could drop or add part......
  • Mangold v. Bacon
    • United States
    • United States State Supreme Court of Missouri
    • June 7, 1911
    ...in construing the same clause of a will. Verily, a court has a natural right to change its own mind. In Padgett v. Smith, 205 Mo. 125, 103 S. W. 942, it was pointed out that it was necessary to preserve unimpaired that natural right — one to be guardedly and discriminatingly used in the exe......
  • Wilson et al. v. Caulfield, No. 22535.
    • United States
    • Court of Appeal of Missouri (US)
    • February 6, 1934
    ...not writ of error, is the proper method. Sec. 1018, R.S. 1929; State ex rel. v. Falkenhainer, 296 S.W. 386, l.c. 388; Padgett v. Smith, 205 Mo. 122, l.c. 124; Kroeger v. Dash, 82 Mo. App. 332, l.c. 333; Ormiston v. Trimbo, 77 Mo. App. 310, l.c. 314. (2) The trial court erred in granting a n......
  • Erwin v. Missouri & Kansas Telephone Co.
    • United States
    • Court of Appeal of Missouri (US)
    • July 7, 1913
    ...have the benefit of review by a writ of error once the judgment is affirmed for failure to file the appeal here in time. Padgett v. Smith, 205 Mo. 122, 103 S. W. 942. Nor may he dismiss his appeal after respondent has filed his motion to affirm for the failure, complying with the conditions......
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12 cases
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...128 Mo. 150, 30 S.W. 343; Levine v. Marchisic, 270 S.W. 643; State ex rel. Knisley v. Board of Trustees, 186 S.W. 680; Padgett v. Smith, 205 Mo. 122, 103 S.W. 942. (5) Under Section 847.17 of the Civil Code, R.S. Ann., 1939, Laws of Missouri, 1943, page 361, the court could drop or add part......
  • Mangold v. Bacon
    • United States
    • United States State Supreme Court of Missouri
    • June 7, 1911
    ...in construing the same clause of a will. Verily, a court has a natural right to change its own mind. In Padgett v. Smith, 205 Mo. 125, 103 S. W. 942, it was pointed out that it was necessary to preserve unimpaired that natural right — one to be guardedly and discriminatingly used in the exe......
  • Wilson et al. v. Caulfield, No. 22535.
    • United States
    • Court of Appeal of Missouri (US)
    • February 6, 1934
    ...not writ of error, is the proper method. Sec. 1018, R.S. 1929; State ex rel. v. Falkenhainer, 296 S.W. 386, l.c. 388; Padgett v. Smith, 205 Mo. 122, l.c. 124; Kroeger v. Dash, 82 Mo. App. 332, l.c. 333; Ormiston v. Trimbo, 77 Mo. App. 310, l.c. 314. (2) The trial court erred in granting a n......
  • Erwin v. Missouri & Kansas Telephone Co.
    • United States
    • Court of Appeal of Missouri (US)
    • July 7, 1913
    ...have the benefit of review by a writ of error once the judgment is affirmed for failure to file the appeal here in time. Padgett v. Smith, 205 Mo. 122, 103 S. W. 942. Nor may he dismiss his appeal after respondent has filed his motion to affirm for the failure, complying with the conditions......
  • Request a trial to view additional results

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