Parkyne v. Churchill

• Decision Date: 30 November 1912
• Citation: 246 Mo. 109,151 S.W. 446
• Parties: PARKYNE v. CHURCHILL et al.
• Court: Missouri Supreme Court

151 S.W. 446

246 Mo. 109

PARKYNE v. CHURCHILL et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

1. APPEAL AND ERROR (§ 639) — DISMISSAL — GROUNDS — DEFECTIVE RECORD.

Where the abstract of record is a proper abstract of the pleadings and judgment, and there is enough to make the record proper a matter of review on appeal, the appeal will not be dismissed for defects in the abstract.

2. APPEAL AND ERROR (§ 584) — DISMISSAL — GROUNDS — DEFECTIVE RECORD.

An abstract of record on appeal which commingles the record proper and matters of

exceptions, so that it is impossible to say what is included for record proper, and what for matters of exceptions, and so that it cannot be determined whether a motion for new trial was preserved in a bill of exceptions or not, and which under the caption "abstract of record" contains pleadings and the judgment, is fatally defective, and leaves for review only the record proper.

3. APPEAL AND ERROR (§ 518) — RULINGS ON PLEADINGS — BILL OF EXCEPTIONS — MOTIONS.

A motion to strike out pleadings, if treated as a pure motion, must appear in the bill of exceptions, and not in the record proper, or the ruling thereon is not reviewable on appeal.

4. PLEADING (§ 418) — RULING ON DEMURRER — WAIVER.

A defendant who answers over after the overruling of a demurrer, or a motion in the nature of a demurrer, thereby waives the ruling.

5. APPEAL AND ERROR (§ 1135) — RECORD PROPER — REVIEW.

Where the only record on appeal is the record proper, which contains a good petition and a judgment responding to one count thereof, the judgment will be affirmed.

Appeal from Circuit Court, Wright County; Argus Cox, Judge.

Action by Josephine Parkyne against Charles S. Churchill and others. From a judgment for plaintiff, defendant Laura E. Moody appeals. Affirmed.

J. W. Jackson, of Hartsville, and W. J. Boyd, of St. Joseph, for appellant. E. H. Farnsworth, of Mountain Grove, and Lamar, Lamar & Lamar, of Houston, for respondent.

GRAVES, P. J.

By a petition first filed in this cause plaintiff in a single count sought to have the circuit court ascertain and determine her title to two certain blocks in the town of Mountain Grove, Wright county, Mo. Whilst title was claimed by adverse possession for 10 years, the action should be properly denominated one under old section 650. Later the petition was amended by the addition of another count, setting up facts constituting a resulting trust, but followed with a prayer as under old section 650 to ascertain and determine the interests of plaintiff and defendants in and to the property in dispute. This petition was challenged by demurrer, but this was overruled nisi, and the appealing defendants answered over. That answer reads: "Now comes the defendant Laura E. Moody, and by leave of the court first had and obtained files this, her separate amended answer to plaintiff's amended petition herein, and says that she denies each and every allegation therein contained, not herein expressly admitted. Defendant Laura E. Moody admits that she claims some right, title, and interest in and to the real estate described in plaintiff's petition. She alleges and says that she is the owner and holds the legal title to the lands described in plaintiff's amended petition aforesaid. Defendant further alleges and says that she is the sole owner, and holds the equitable title to the lands described in the plaintiff's petition aforesaid. For another and further answer and defense the plaintiff's action, the defendant says and avers the fact to be that the plaintiff's action, if any she had, was barred before the filing of the original petition in this action, in this: That any action that the plaintiff may have had accrued and existed more than 10 years before the filing of the original petition herein, which statute of limitation defendant especially pleads in bar of the plaintiff's action." No reply appears in the record, but the cause seems to have proceeded as if the reply had been filed. The judgment after finding the service of process by publication upon all the defendants named, except Laura Moody, and pronouncing a default judgment against them, then proceeds: "The court further finds all the issues for the plaintiff, finds that the plaintiff is the owner in fee and in possession of the land described in the petition herein, to wit, block 6 and 7, in Durham's addition to the original town of Mountain Grove, finds that none of the aforesaid defendants have any right, title, interest, or estate, either in law or equity, in and to the said real estate. Wherefore it is considered, ordered, and decreed by the court that all of said defendants, to wit, Joseph A. Dedmon, S. S. Dedmon, C. C. Dedmon, Elizabeth Durham, E. M. Durham, Adolph A. Durham, Emmett McDurham, Lizzie Kenamore, Catherine A. Hull, Samuel Coleman, J. W. Isom, and Chas. S. Churchill, and the unknown heirs of each and all of the aforesaid defendants and Laura E. Moody, defendants, be, and they are hereby, divested of any and all right, title, interest, and estate, both in law and equity, in and to said block 6 and 7, Durham's addition to the original town of Mountain Grove, and that all right, title, interest, and estate be vested, and the same hereby is vested and quieted in the plaintiff, Josephine Parkyne. It is further adjudged that the plaintiff have and recover of and from the defendant Laura E. Moody all costs in this behalf laid out and expended." It should be noted that the judgment also recited the appearance of Laura E. Moody in person and by counsel. From this judgment Laura E. Moody has appealed. Such states the condition of affairs in the trial court. In this court the defendant appealing is met with a motion to dismiss her appeal. The motion is of length, but its effect is to challenge the...