Short v. Kidd

• Decision Date: 01 June 1917
• Docket Number: No. 17996.,17996.
• Citation: 197 S.W. 64
• Parties: SHORT v. KIDD et al.
• Court: Missouri Supreme Court

197 S.W. 64

SHORT v. KIDD et al.

No. 17996.

Supreme Court of Missouri, Division No. 1.

June 1, 1917.

Motion to Modify Opinion Denied July 14, 1917.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Action by U. F. Short against Lelia M. Kidd and another. From judgment for defendants, plaintiff appeals. Affirmed.

On June 9, 1911, plaintiff filed in the Pettis circuit court an action in ejectment against defendants Lelia M. Kidd and another to recover possession of the north half of lot 11 and ten feet and six inches off of the south side of lot 12 in block 1 of Martha E. Smith and Sarah E. Cotton's Sixth addition to the city of Sedalia, in the county and state aforesaid. The date of ouster is placed as January 2, 1911.

Defendant Lelia M. Kidd filed her separate amended answer in said cause, admitting that she is in possession of the real estate aforesaid, but denies each and every other allegation in said petition. The answer contains a plea of title by adverse possession under the ten-year statute of limitations, and alleges that she is the owner of said real estate. The answer likewise pleads facts tending to show a resulting trust in favor of said defendant, and concludes with a prayer asking the court to divest plaintiff of the title to said real estate and to vest the same in her. She also prayed for general relief. The reply is a general denial.

On May 28, 1912, the trial was commenced before the chancellor, part of the evidence heard, and the cause continued to May 30, 1912. On the last-named date, additional evidence was heard, and the cause continued until June 1, 1912. On the latter date additional evidence was heard, and the cause taken under advisement by the court. On June 18, 1912, during the June term, the chancellor made what is denominated a finding, as follows:

"Now on this day come the parties thereto by their respective attorneys, and the evidence herein having all previously been heard, and the court being now fully advised in the premises as to the question of resulting trust, the court doth find against the defendant and in favor of the plaintiff as regards the aforesaid question of resulting trust, and the court being unable to determine as to the preponderance of testimony in the question as to claims of title by adverse possession, it is agreed by all parties represented by their attorneys that this cause shall be continued until the October 1912, term of this court, and at that time the issues herein as to adverse possession and title by limitation shall be submitted to a jury."

The cause was thereafter continued until the May term, 1913, of said court. During the last-named term, and on May 14, 1913, a jury was impaneled, evidence heard, and the trial continued until the 17th day of May inclusive, when instructions were given to the jury, arguments made by counsel, verdict returned by ten jurors in favor of defendant, and judgment entered in behalf of respondent.

A large number of witnesses were sworn and testified in behalf of the respective parties at the May term, 1913, before the jury, and their testimony is set out in full in the bill of exceptions and abstract of record herein. No bill of exceptions was filed during the May or June terms, 1912, when the cause was partially heard, as above shown, nor was any leave taken to file a bill of exceptions thereafter. There is nothing in the record to indicate that the testimony set out in the abstract covers the testimony given before the chancellor in May and June, 1912, or that it is even substantially the same.

Such other matters as may be deemed necessary will be considered in the opinion.

The final judgment rendered herein, on May 17, 1913, without caption, reads as follows:

"Now on this day again come the parties hereto by their respective attorneys, and come also the jury heretofore sworn to try this cause, and the trial of this cause is by the court resumed, and the evidence having been heretofore all heard, the instructions of the court are now given to the jury, and the arguments of counsel being concluded, the said jury retire to their room to consider of their verdict. And now come the jury into open court, and through their foreman return the following verdict, to wit: `We, the jury, find the issues for the defendant. [Here follows the names of the ten jurors who signed the verdict.]'

"Wherefore the court doth finally order and decree: That the court's decision heretofore made on defendants' equitable defense to the effect that no trust has been proven by defendants is hereby made final, and that the defendants take nothing by virtue of their equitable defense, and that the bill of equity set up in defendants' answer be and is dismissed.

"The court doth further find and decree that on the defense of adverse possession under the statutes of limitation set up in defendants' answer, the jury having decided the issue of fact thereunder in favor of the defendants, the court adopts said finding and renders judgment for defendants on said issue.

"It is therefore considered and adjudged by the court that the plaintiff take nothing by his writ herein, and that the defendants go hence without day, and that they have and recover of the plaintiff herein their costs in this behalf laid out and expended, and that execution issue therefor."

On May 24, 1913, the plaintiff dismissed as to defendant Jennie B. Carter.

Appellant in due time filed his motion for a new trial, which was overruled, and the cause duly appealed by him to this court.

Lamm, Bohling & Lamm, of Sedalia, J. W. Suddath & Son, of Warrensburg, and George F. Longan, of Sedalia, for appellant. Montgomery & Montgomery, of Sedalia, for respondents.

RAILEY, C. (after stating the facts as above).

I. The defendant's equitable cross-bill, set out in the answer, in which she sought to establish a resulting trust in her favor and to divest plaintiff of the title to the real estate in controversy and vest the same in her, converted the action into an equitable proceeding. As this part of the answer was not withdrawn by defendant, it is still a part of the case and must be dealt with accordingly.

As counsel agree with us, that the action still remains a proceeding in equity, we will consider it as such and dispose of the case on the record before us.

II. It is contended by appellant that the alleged finding by the chancellor made on June 18, 1912, heretofore set out, eliminated from the case any further consideration of the equitable branch thereof; as no exceptions were saved and no bill of exceptions filed in respect to the former hearing. On the other hand, counsel for respondent insist that the equitable cross-bill is still in the case, as it was never withdrawn, and that respondent would be entitled to be heard thereon in this court on the merits of same if the evidence received at the May and June terms, 1912, had been incorporated in appellant's bill of exceptions, and set out in his abstract of record, although no exceptions were noted therein.

We will first consider the legal effect of the chancellor's so-called finding on a part of the case in 1912. He found the issues in respect to the resulting trust in favor of plaintiff, and as a part of the same finding, and following the above, he said:

"And the court being unable to determine as to the preponderance of testimony in the question as to claims of title by adverse possession, it is agreed by all parties represented by their attorneys that this cause shall be continued until the October, 1912, term of this court, and at that time the issues herein as to adverse possession and title by limitation shall be submitted to a jury."

The chancellor, by the above finding, did not attempt to enter a final judgment in regard to the equitable defense, and even if he intended it to so operate, it would have been ineffectual to accomplish that purpose, as all the issues were not disposed of in said finding. It is evident that no appeal could have been taken by respondent from said finding, even as to the record proper, because said entry did not purport to be a final judgment. First Nat. Bank v. Kirby, 190 S. W. loc. cit. 600; First Nat. Bank v. Kirby et al., 175 S. W. loc. cit. 928; Koeln v. Gould, 260 Mo. loc. cit. 499, 500, 168 S. W. 1140; Lowe v. Frede, 258 Mo. loc. cit. 210, 211, 167 S. W. 443; Rock Island Imp. Co. v. Marr, 168 Mo. 252, 67 S. W. 586.

We are not aware of any provision of law which authorizes an interlocutory decree to be rendered in a case of this character. The finding of the court therefore in regard to the equitable defense, made in 1912, was simply in legal effect a memorandum of the conclusion which he had then reached on the evidence formerly taken. This is manifest from the fact that the entry of the chancellor recites that all the parties agreed that the case should be continued to the October term, 1912, and at the latter date the issue as to adverse possession and limitation should be submitted to a jury. The judgment herein recites that the former finding as to the equitable defense is made final. We are clearly of the opinion that the whole case, including the equitable cross-bill and the evidence introduced in respect to same in May and June, 1912, was carried forward to the jury trial in May, 1913, and that, no final disposition having been made of the equitable defense until the final judgment was rendered on May 17, 1913, the whole case would be properly before us on plaintiff's appeal, including the equitable branch aforesaid, if the evidence heard by the chancellor in May and June, 1912, was contained in the abstract of...