Parkinson v. Caplinger

• Decision Date: 31 October 1877
• Citation: 65 Mo. 290
• Parties: PARKINSON ET AL., PLAINTIFFS IN ERROR v. CAPLINGER ET AL.
• Court: Missouri Supreme Court

65 Mo. 290

PARKINSON ET AL., PLAINTIFFS IN ERROR

v.CAPLINGER ET AL.

Supreme Court of Missouri.

October Term, 1877.

Error to Morgan Circuit Court. HON. T. M. RICE, Judge.

A. W. Anthony and Nathan Bray for plaintiffs in error.

Allen was improperly made a party, because, at the time of his application, final judgment had been rendered, Wag. Stat., p. 1034, § 3; and because he claimed that the title to the real estate was absolutely and exclusively vested in him, and, if so, his interests could not have been prejudiced by the partition suit. He was “not only not a party to the suit, but he did not claim to hold under any one who was, nor did he claim to have purchased pendente lite.” Peak v. Laughlin 49 Mo. 162.

James P. Ross and B. R. Richardson for defendants in error.

1. The statement in the body of the certificate that the officer taking the acknowledgment had affixed his official seal to the certificate, is sufficient evidence of that fact. Geary v. City of Kansas, 61 Mo. 378.

2. The record of the deed to Masters and of the deed to Allen, although imperfect as to the seal, imparted notice to all persons of the contents thereof. Speck v. Riggin, 40 Mo. 405; Maupin v. Emmons, 47 Mo. 304; Rhodes v. Outcalt, 48 Mo. 367; Musick v. Barney, 49 Mo. 458.

3. When no instructions are asked for or given, there is no point of law saved, and the Supreme Court will not review or disturb the finding of facts. Wilson v. North Mo. R. R. Co., 46 Mo. 36; McEvoy v. Lane, 9 Mo. 47; Von Phul v. St. Louis, 9 Mo. 49.

NORTON, J.

This was a suit instituted in the circuit court of Morgan county, for the partition of the following real estate in said county: the w1/2 of ne1/4 and ne1/4 of se1/4, section 13, township 42, range 17. At the August adjourned term of said court, held on the 3rd day of September, 1872, the court rendered judgment of partition between the plaintiffs and defendant Caplinger, and directed a sale of the premises to be made for that purpose. At the same term of the court, on the 1st day of October, 1872, defendant Allen, filed his motion to set aside said judgment, and for leave to be made a party to the proceeding. This motion was sustained at the February term, 1873, of said court, and defendant Allen filed his answer, setting up title in himself to all the land sought to be partitioned. Plaintiffs, after an unsuccessful motion was made to strike out the answer, filed a replication thereto, denying all the allegations it contained, and alleging that the grantors in one of the deeds under which Allen claimed, were minors at the time of its execution, and had disaffirmed it after arriving at majority. The trial resulted in a judgment for defendant Allen, and plaintiffs, having made ineffectual motions for new trial and in arrest of judgment, bring the case before us by writ of error. No declarations of law having been asked or given, our attention will necessarily be confined to the exceptions taken to the action of the court in sustaining the motion of defendant Allen to set aside the judgment of partition, rendered October 3, 1872, and allowing him to be made a party defendant, and to its action in admitting evidence.

1, PARTITION, what is not a final judgment in.

It is insisted, by counsel for plaintiffs, that the judgment of partition and order of sale made on the 3rd of September, 1872, was final, and could not be disturbed by the court making it. In the case of Gudgell v. Mead, 8 Mo. 54, Judge SCOTT, speaking for the court, held that “in proceedings in partition, both at law and in equity, there are two judgments and decrees, the one, interlocutory, the other, final. The first is quod partitio fiet inter partes de tenementis upon which a writ of commission goes, commanding that partition be made, and, upon return of this writ or commission, executed, if the proceedings are approved by the court, the record judgment is given quod partitio firma et stabilis in perpetuam teneatur. This is the principal judgment, and, before it is given, no writ of error lies.” In that case, the court made a decree of partition and appointed commissioners to execute it, and it was held to be an interlocutory, and not a final decree; that, in fact, no partition had been made, but only a decree requiring it to be done. This case was followed in the case of McMurtry v. Glasscock, 20 Mo. 432. The only difference between the cases cited and the one at bar, is that, in the case before us, the sheriff was required to make sale of the premises for purposes of partition, and report his action to the court, instead of the partition being made in kind through commissioners, who likewise are required to report their action for approval or disapproval.

2. ____: practice.

The power of the court over the judgment in question was amply conferred in Sec. 9, Chap. 104, Wag. Stat. 967. It provides that any person having an interest in premises sought to be partitioned, whether the same be present or future, vested or contingent, though not made a party in the petition, may appear and be made a party on application for that purpose, accompanied by an affidavit of such interest.

3. ____: _____: new parties.

There is no prescribed stage of the proceeding in which this application is to be made. If presented during the pendency of the litigation, we think it is timely and within the power of the court to pass upon it. The application in this case was made at the same term judgment was rendered, during the pendency of the litigation, with an answer, sworn to, disclosing the interest claimed, and we can perceive no error in the action of ...