Parkyne v. Churchill

• Decision Date: 30 November 1912
• Parties: JOSEPHINE PARKYNE v. CHARLES S. CHURCHILL et al.; LAURA E. MOODY, Appellant
• Court: Missouri Supreme Court

151 S.W. 446

246 Mo. 109

JOSEPHINE PARKYNE v. CHARLES S. CHURCHILL et al.; LAURA E. MOODY, Appellant

Supreme Court of Missouri, First Division

November 30, 1912

Appeal from Wright Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

J. W Jackson and W. J. Boyd for appellant.

E. H Farnsworth and Lamar, Lamar & Lamar for respondent.

It is impossible to know from the manner in which the so-called abstract has been prepared, what is record proper and what is, or was, matters preserved by exception. Jackson v Bolt & Nut Co., 238 Mo. 657; Owens v. Mathews, 226 Mo. 77; Kolokas v. Railroad, 223 Mo. 461; Wallace v. Libby, 231 Mo. 341; Barnham v. Shelton, 211 Mo. 66; Clay v. Wholesale Co., 200 Mo. 637; Keeton v. Weber, 233 Mo. 691; Pugsley v. Cooperage Co., 154 Mo.App. 386.

OPINION

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, Missouri. Whilst title was claimed by adverse possession for ten 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 to 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 ten 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 E. 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 six and seven 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 Kennamore, 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, defendant, 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 six and seven, 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 sufficiency of the abstract filed in this court. Further outline of the case can be properly omitted in the statement, and additional matter be left to the opinion.

I. The motion to dismiss the appeal must be overruled. However defective the abstract of record may be as to other matters, there is a proper abstract of the pleadings and judgment. Under the head of "Abstract of Record" appears enough to make the record proper a matter of review by this court, and in such case a motion to dismiss the appeal is never sustained. The question has been so frequently ruled by this court, that a mere statement of the situation will suffice. The motion to dismiss the appeal is therefore overruled.

II. Refusing to absolutely dismiss the appeal, however, does not relieve the defendant of all of the difficulties in this court. Respondent's motion points out many things going to show that we can only consider upon this appeal the record proper. In other words, that all matters of exceptions are precluded from a review here, by reason of defects in the abstract filed. Respondent challenges the sufficiency of this record and on such challenge stands. She does not brief the merits of the case. To our mind her objections to the abstract of record are well taken. There is a commingling of record proper and matters of exceptions to such an extent, that it is impossible to say what is intended for record proper, and what intended as matters of exceptions. It cannot be determined from this abstract whether the motion for new trial was preserved in a bill of exceptions or not. We have stated above that there is a caption in the abstract of record entitled "Abstract of Record" and under this caption we find the pleadings and the judgment. These matters and a preliminary statement of the case run to and take a part of page 13 of the document called "Statement, Abstract of Record, Brief and Argument of the Appellant, Laura E. Moody." Following the last sentence of the judgment on said page thirteen, we find:

"To the rendition of which judgment the defendant, Laura E Moody, then and there objected and excepted.

"Afterwards to-wit, on the 5th day of March, 1909, and within four days after the...