Richardson v. Schuyler County Agricultural and Mechanical Association

• Decision Date: 21 May 1900
• Citation: 57 S.W. 117,156 Mo. 407
• Parties: RICHARDSON v. SCHUYLER COUNTY AGRICULTURAL AND MECHANICAL ASSOCIATION, Appellant
• Court: Missouri Supreme Court

57 S.W. 117

156 Mo. 407

RICHARDSON v. SCHUYLER COUNTY AGRICULTURAL AND MECHANICAL ASSOCIATION, Appellant

Supreme Court of Missouri, Second Division

May 21, 1900

Appeal from Scotland Circuit Court. -- Hon. R. F. Roy, Judge. ^[*]

Affirmed.

Nat M Shelton and Smoot, Mudd & Wagner for appellant.

(1) The motion for new trial filed August 19, 1895, upon the incoming of the jury's verdict that plaintiff was entitled to dower in the lands, was premature, and hence when overruled appellant was not called upon to take a bill of exceptions. Goode v. Lewis, 118 Mo. 357; St. Louis v Boyce, 130 Mo. 572; Rennels v. Washington University, 96 Mo. 226; Macke v. Byrd, 109 Mo 487. (2) Hence the motion for new trial filed May 31, 1897, upon the incoming and confirmation of the report of the commissioners theretofore appointed to assign plaintiff's dower, was timely because then, and not until then, was a final judgment entered from which an appeal would lie. The act of 1891 (Laws 1891, p. 70) has no application since proceedings in dower are not within its language. (3) The Hon. Ben. E. Turner, before whom the case was tried, had died since the trial of the case and before the motion for new trial was filed, hence the motion should have been sustained by Judge Roy. Woolfolk v. Tate, 25 Mo. 597; Vaullaire v. Vaullaire, 45 Mo. 602; Cocker v. Cocker, 56 Mo. 180; State v. Boogher, 3 Mo.App. 442; Bremen Book v. Herman Umrach, 55 Mo.App. 43; State ex rel. v. Walls, 113 Mo. 42; Sec. 2171, R. S. 1889.

F. M. Harrington, John M. Jayne and Edward Higbee for respondent.

(1) The case was tried at the August term, 1895. No exceptions saved, no bill of exceptions filed, or leave taken to file a bill of exceptions. If error was committed at the trial, it was waived. To preserve exceptions at the interlocutory trial it was necessary to file a bill of exceptions at that term. Secs. 2167 and 2168, R. S. 1889; St. Louis v. Boyce, 130 Mo. 577. (2) Appellant now complains of the giving and refusal of certain instructions and other rulings at the trial, at the August term, 1895. Those rulings became final at that term. It is not competent to bring matters of mere exceptions into the final bill, filed in September, 1897, at a subsequent term, when no bill preserving the exceptions was filed at the proper time during the course of the proceedings. Asphalt Paving Co. v. Ullman, 137 Mo. 564. If any exceptions were taken at the trial to the refusal of instructions or the like, they could not be galvanized into life by merely inserting them into a bill of exceptions filed two years later. State v. Ware, 69 Mo. 333; Carpenter v. McDavitt, 53 Mo.App. 399; Keen v. Schnedler, 92 Mo. 524; Stearns v. Railroad, 94 Mo. 321; Wentzville Tobacco Co. v. Walker, 123 Mo. 669; State v. Taylor, 132 Mo. 286. An exception taken at one term but not then preserved, can not be saved by incorporating it into a bill of exceptions at a subsequent term. State v. Taylor, 134 Mo. 136. (3) If error was committed on the trial and exceptions had been saved by a bill of exceptions signed and filed at the time, Judge Roy or other successors of Judge Turner might have granted a new trial; but no exceptions having been saved at the time, they were waived. They are not in the breast of the court at a subsequent term, and if Judge Turner had survived, he could not have granted a new trial; neither could his successor.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

This is an action for the assignment of dower.

The petition is in the usual form, and the answer is a general denial.

Plaintiff is the widow of Manuel Richardson, who died June 17, 1888. During the marriage of plaintiff and said Manuel Richardson he was seized in fee of the west half of the northwest quarter of the northeast quarter of section 13, and the northeast quarter of the northeast quarter of section 14 in township 66, range 15, in Schuyler county, Missouri.

The action was commenced in Schuyler county March 31, 1893. On May 6, 1893, a change of venue was awarded to Scotland county, and the cause was tried in Scotland Circuit Court on 18th day of August, 1895, before a jury.

The sole and only issue tried, was whether plaintiff was entitled to dower in the said lands.

Defendant asserted title under a power of attorney alleged to have been executed by Manuel Richardson and plaintiff, as his wife, under which a deed was made conveying said lands in the lifetime of said Richardson.

Plaintiff maintained she never signed or acknowledged said power of attorney, and it was over her execution or nonexecution of said instrument that the contest was waged.

The jury found for plaintiff and assessed her damages at $ 79.58. Whereupon at the same term defendant filed its motion for new trial, which said motion was at the said August term, 1895, overruled. No exceptions were saved as to any alleged errors committed during said trial and no bill of exceptions filed, or leave taken to file the same after the term.

Commissioners were appointed to admeasure plaintiff's dower and at the February term, 1897, filed their report which was approved without objection or exception and thereupon final judgment was entered assigning plaintiff her dower in conformity with said report.

A second motion for new trial was filed February 17, 1897, after the final judgment. This motion was also overruled May 31, 1897, to which defendant excepted. A motion in arrest was filed on same day and overruled and defendant excepted.

The motion for new trial is based on the following grounds:

1st. Because the verdict is against the evidence presented at the trial.

2d. Because the verdict is against the weight of the evidence.

3d. The verdict is against the law as declared in the instructions of the court.

4th. Because the court erred in refusing instructions asked by defendant.

5th. Because the court erred in giving instructions asked by plaintiff.

6th. Because the court committed error in instructions given to the jury of its own motion.

7th. Because the damages assessed in this cause are excessive and unreasonable.

8th. Because the Hon. Ben E. Turner, the judge before whom this cause was tried has, since the trial, died.

9th. Because the court at the trial of this case excluded legal and competent evidence offered by defendant.

10th. Because the count admitted improper, illegal and incompetent evidence at the instance of and on behalf of plaintiff against the objections of defendant.

I. It will be observed that the motion for new trial is confined with one exception to errors alleged to have been committed at the August term, 1895. As already said in the statement of the case, no exceptions to the alleged erroneous rulings were taken at said August term, 1895, and no bill of exceptions filed, but defendant endeavored at the February term, 1897 to preserve its exceptions to the previous action of the court at the August term, 1895. It is entirely clear that it could not do so. By failing to save its exceptions at the August term, 1895, it waived all the alleged errors which occurred at said term. [State v. Ware, 69 Mo. 332; Henze v. Railroad, 71 Mo. 636.] To preserve exceptions at the interlocutory trial it is necessary to file a bill of exceptions at that term. [St. Louis v. Boyce, 130 Mo. 572, 31 S.W. 594.] The apparent exception to this rule, which has obtained for many years in this State is this, that exceptions taken on the trial of a cause may be preserved in the bill filed at the term at which a motion for new trial is overruled, though at a...