Papin v. Blumenthal

• Decision Date: 31 October 1867
• Parties: JOSEPH L. PAPIN, Respondent, v. AUGUSTUS A. BLUMENTHAL et al., Appellants.
• Court: Missouri Supreme Court

41 Mo. 439

JOSEPH L. PAPIN, Respondent,

v.AUGUSTUS A. BLUMENTHAL et al., Appellants.

Supreme Court of Missouri.

October Term, 1867.

Appeal from Franklin County Circuit Court.

Jno. N. Straat, Knox & Smith, and Geo. P. Strong, for appellants.

Glover & Shepley, for respondent.

HOLMES, Judge, delivered the opinion of the court.

This was a suit in partition. In 1856, there was a judgment of partition which ascertained the rights and interests of the parties and ordered sale of the property by the sheriff. This judgment was affirmed on appeal, in Papin v. Massey, 27 Mo. 445; 24 How. (U. S.) 362. The decision was final and conclusive so far. Nothing remained to be done but to carry the judgment into execution by further proceedings in accordance therewith. Properly there would have been a sale by the sheriff, under the statute, according to the order made. Nothing of the kind was done.

But it appears by the record that, in 1864, all the parties, both plaintiff and defendants, Blumenthal and Whitmore appearing in their ow proper persons, consented and agreed that the previous order of sale should be set aside, and that the court should make a new order appointing commissioners to make partition of the land in kind. We suppose this might be done by the consent and agreement of all the parties. The order was made accordingly.

A report was made by these commissioners, and on the 29th of September, 1864, an endorsement was made upon a copy of the order attached to the report in these words, “Approved: J. W. Owens, Judge,” and the document was filed. We do not find by the record that any final judgment of confirmation has ever been entered, upon the coming in of this report, that such partition “be firm and effectual forever,” in accordance with the statute--R. C. 1855, p. 1115, § 26. The mere approval by the judge is certainly no such judgment. Nor does there appear to be any final judgment in these proceedings from which an appeal would lie to this court. The refusal of the court below to sustain the appellant's motion to set aside the report was not a final judgment. Before a final judgment could properly be rendered, upon the filing of the report, there should have been time given and an opportunity allowed to the parties to file exceptions to the report. These exceptions being disposed of, there should have been a final judgment of confirmation before the case came here--McMurtry v. Glascock, 20 Mo. 432.

There appears to be a dispute about the authority of a...