Rodgers v. Kallmeyer

• Citation: 104 Mo. App. 137,78 S.W. 334
• Parties: RODGERS et al. v. KALLMEYER et al.
• Decision Date: 19 January 1904
• Court: Court of Appeal of Missouri (US)

78 S.W. 334

104 Mo. App. 137

RODGERS et al. v. KALLMEYER et al.

Court of Appeals at St. Louis, Missouri.

January 19, 1904.

APPEAL—FINAL JUDGMENT—DEMURRER.

1. Under Rev. St. 1899, § 806, permitting appeals from final judgments, no appeal will lie from a judgment overruling or sustaining a demurrer.

Appeal from Circuit Court, Montgomery County; E. M. Hughes Judge.

Proceedings by Jacob R. Rodgers and others against Frank H. Kallmeyer and others. From a judgment for defendants, plaintiffs appeal. Appeal dismissed.

J. M. Barker, for appellants. E. Rosenberg & Son, for respondents.

REYBURN, J.

The petition filed in this proceeding was unavoidably lengthy, but, summarized, the action was entitled to construe and reform the will of Thomas J. Powell, deceased, and was instituted by appellants Jacob R. Rodgers, Nancy V., his wife, James H. Powell, and Mary Fanny Devault against the administrators with will annexed of estate of Thomas J. Powell, deceased, and the legatees and devisees under such will; the plaintiffs Nancy V. Rodgers, Mary Fanny Devault, and James H. Powell being children of the testator. The object of the action and prayer of the complaint was to have plaintiff James H. Powell declared a pretermitted heir, and also to have the will construed or reformed so as to relieve his plaintiff Nancy V. Rodgers from payment of interest upon a note described, to conform to the alleged intention of the testator. Defendants filed a joint demurrer to the petition on the ground that it failed to state facts sufficient to constitute a cause of action against defendants. Upon submission the court sustained the demurrer only to those portions of the petition relating to the relief sought by Nancy V. Rodgers, and on the same day the court further entered an order as follows: "Now at this day, this cause coming on to be heard, the plaintiffs appear by their attorney, John M. Barker, and the defendants appear by their attorneys E. Rosenberg & Son, and the cause being called for trial, both parties announcing themselves ready for trial, whereupon said cause is submitted to the court upon the pleadings in the cause, and after listening to the argument of the attorneys the court construes the will of Thomas J. Powell as to the ninth item of said will to be: The court, considering the will as to the ninth item of said will, finds that James H. Powell, one of the children of the testator, Thomas J. Powell, is not provided for therein, and that the court further...