Rosbrugh v. Motley
| Decision Date | 07 December 1948 |
| Docket Number | 6764 |
| Parties | ROSBRUGH v. MOTLEY et al |
| Court | Missouri Court of Appeals |
'Not to be published in State Reports.'
John M Belisle and Ralph P. Johnson, both of Osceola, for respondents.
Lee E Crook, of Osceola, and Herman Pufahl, of Bolivar, for appellants.
BLAIR
This suit was filed in St. Clair County Circuit Court on September 25, 1946, by plaintiffs W. S. Rosbrugh, Myrtle Rosbrugh, Marvin A. Rosbrugh and Elma L. Rosbrugh (respondents here) against Gertie M. Motley, Rolland Motley and Raybourn Motley.
In plaintiffs' petition it is alleged that they were the owners of the East Half of Section Thirteen (13), Township Thirty-eight (38), of Range Twenty -eight (28), in said county, and that defendants went upon said land 'and graded or caused to be graded a road on and upon the south forty feet thereof wrongfully and without any right or permission so to do and did wrongfully and wilfully tear down certain fences and gates on and across said forty feet of said land and removed them therefrom all without the knowledge or permission of the plaintiffs and are using said land as a road.'
On September 28, 1946, defendants Rolland Motley and Raybourn Motley admitted 'that on the ___ day of August, they did some grading on the public road but deny that they tresspassed on the land of Plaintiff and for further answer, Defendants aver that the road in dispute has been and is now a public thoroughfare and public road and has been for the last twenty-one years, a portion of same for the last forty years and so recognized by the community and public generally.'
The transcript states that no reply was found in the files, and hence it was not set out.
On March 27, 1947, plaintiffs filed an amended petition, alleging that on the ___ day of August, 1947, 'the defendants went upon plaintiffs said land and graded or caused to be graded a road on and upon the South forth feet thereof wrongfully and without any right or permission so to do and did wrongfully and wilfully tear down certain fences and gates on and across said South forty feet of said land and removed them therefrom all without the knowledge or permission of the plaintiffs and are using said land as a road;' and in paragraph 4, such petition made the following allegation:
The transcript shows that on March 27, 1947, the trial court made the following order:
'Now on this 27th day of March, 1947, come the plaintiffs in person and by their attorneys, and come the defendants in person and by their attorneys and the court, having heretofore on the 7th day of January, 1947, heard the testimony of the witnesses and the evidence and having taken the matter under advisement, doth find that the South forty feet of the East Half of Section Thirteen (13) in Township Thirty-eight (38) of Range Twenty-eight (28) is a public road and that said public road extends on east for one half mile over the South forty feet of the Southwest Quarter of Section Eighteen (18) in Township Thirty-eight (38) of Range Twenty-seven (27) to a point where it intersects a public road now open.
On March 31, 1947, defendants filed their motion for a new trial, as follows:
'Now come the defendants and move the Court to set aside the decree as rendered by the Court and to grant the defendants a new trial as to certain parts of the decree and judgment for the following reasons, to-wit:
'1. That part of said decree is beyond the pleadings and evidence and is not warranted either under the pleadings or by the evidence.
'2. That the part of the decree which finds that the land in controversy, and described in the original petition, was a public road is proper, but the Court erred in finding further that said public road extends on East for one-half mile over the South forty feet of the Southwest quarter of Section Eighteen (18), Township Thirty-eight (38), Range Twenty-seven (27), to a point where it intersects a public road now open, is improper, was not in issue in the case when it was tried, and is not justified under the pleadings or the evidence.
'3. Because the Court erred in adjudging and decreeing 'that said strip of land be opened as a public road, and that plaintiffs and defendants refrain from interfering with the use thereof as such, and that if either plaintiffs or defendants have any gates or fences in or across the same, that they be at once removed therefrom and that this decree is rendered upon the express condition that this be done and the Court retains jurisdiction of this case for the express purpose of seeing that this is done, and that neither side interfere with the use of said road or any part thereof, by the other or by the public,' and erred in rendering that part of the judgment because that was not in issue in the case when tried, and the case was not tried with that matter an issue, and that part of the decree is improper and beyond the pleadings and the evidence.
'4. Because the Court erred in taxing one-half of the costs of the suit against the defendants.
'5. Because the judgment as rendered is beyond the jurisdiction of the Court and beyond the issues raised by the pleadings or the evidence.
petition.
'7. Because when the Court made a finding that the South 40 feet of the East half of Section 13, Township 38, Range 28 is a public road it was the duty of the Court to dismiss plaintiffs' petition and render judgment in favor of the defendants and it was thereupon the duty of the Court to render judgment against the plaintiffs for all costs accrued in the case.'
On July 3, 1947, such motion of defendants was sustained 'by agreement of the parties,' notwithstanding Section 118, Laws of 1943, page 389, Mo.R.S.A. § 847.118. On the same day plaintiffs filed a motion to set aside the previous judgment and to render a new judgment in lieu thereof.
On July 18, 1947, and after ninety (90) days had passed since defendants filed their motion for new trial, the trial court entered the following order:
'Now on this 18th day of July, 1947, this cause coming on for hearing on the motion of the plaintiffs for judgment and the court, having heretofore heard the argument and the evidence in this case doth sustain said motion and finds the issues for the plaintiffs and finds that they are the owners in fee of the land in controversy, to-wit:
'The South forty feet of the East Half of Section Thirteen (13) in Township Thirty-eight (38) of Range Twenty-eight (28) in St. Clair County, Missouri.
'The court further finds that the defendants went upon plaintiffs' said land about the ___ day of August, 1946, and graded or caused to be graded a road on said land without any right or permission to do so and tore down certain fences and gates on said land and removed them therefrom without any right to do so and are using said land as a road without any right to do so.
'It is therefore ordered, adjudged and decreed that the defendants, and each of them, be and they hereby are forever restrained and enjoined from using said land as a road and from interfering in any way with the plaintiffs in their use and occupancy of said land.
'It is further ordered that the costs of this proceeding be taxed against the defendants.'
On July 24, 1947, defendants filed their motion for a new trial on the following grounds, to-wit:
'1. Because this Court had no jurisdiction to enter a judgment on July 18th, 1947.
'2. Because the Court erred in admitting improper, incompetent and irrelevant evidence on the part of the plaintiffs in the trial of this case and over the defendants' objections.
'3. Because the Court erred in refusing to admit proper competent and relevant evidence and testimony on the part of the...
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