Sheppard et al. v. Wagner et al.

• Decision Date: 29 February 1912
• Citation: 145 S.W. 420
• Parties: SHEPPARD et al. v. WAGNER et al.
• Court: Missouri Supreme Court

145 S.W. 420

SHEPPARD et al. v. WAGNER et al.

Supreme Court of Missouri, Division No. 1

February 29, 1912.

APPEAL AND ERROR (§ 1194)—REVERSAL—RETRIAL —DIRECTION.

Where the Supreme Court on appeal held that, on the face of a deed and certain contracts in evidence, the deed was a mortgage, and reversed the judgment and remanded the cause, to be proceeded with according to the views expressed in the opinion, the judgment on appeal did not require the entry of any specific judgment on remand, nor require the case to be proceeded with in any particular way, nor did it prevent one of the defendants from showing her right to the property in controversy through any other valid agreement or transaction.

On rehearing. Overruled.

For former opinion, see 144 S. W. 394.

GRAVES, P. J.

Plaintiffs have filed a vigorous motion for rehearing, from which it appears that counsel for plaintiffs clearly misapprehend the opinion of this court, especially that part thereof remanding the cause. The opinion closes with this language: "Judgment reversed, and cause remanded, to be proceeded with according to the views in this opinion expressed." As stated in the original opinion, the cause was somewhat irregularly tried below. Both sides filed motions for judgment on the pleadings, and this, too, when under the pleadings there were issues of fact attempted to be raised. For instance, we have in the answer this defense pleaded, or, more properly speaking, vaguely pleaded: "That said Sheppard was the stepfather of the defendant Ella A. Wagner, he having married her mother in the early infancy of said Ella A. Wagner, and that he reared her and cared for her from her said early infancy, and that she was kind and obedient to him, and treated him as a dutiful daughter, and attended to the housework for his household, and aided him in his business, and lived with him until the time of his death, and cared for him in his declining years; and that he was greatly attached to her, and in consideration of her remaining with him and caring for him agreed and had intended, for many years before his death, to leave all his property to her when he should die." In the reply to this answer we have, among other things, a denial of all new matter in the answer. If this pleads a separate and distinct agreement, and one other than the instrument which we declare to be a mortgage, as we think the pleader was attempting to do, then there was an issue of fact there, untouched by the motion for...