Smith v. Moseley

• Decision Date: 23 May 1911
• Citation: 137 S.W. 971,234 Mo. 486
• Parties: SMITH v. MOSELEY et al.
• Court: Missouri Supreme Court

137 S.W. 971

234 Mo. 486

SMITH v. MOSELEY et al.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. APPEAL AND ERROR (§ 1)—WRIT OF ERROR.

While writs of error are writs of right at common law and by statute, they are issuable subject to the regulations prescribed by Rev. St. 1909, § 2054.

2. MOTIONS (§ 14)—FORM OF WRITING— BRIEF.

Under Rev. St. 1909, § 2092, defining a motion as an application for an order, and section 1841, requiring motions to contain a written specification of the reasons on which they are founded, a motion possessing these requisites may be embodied as well in a brief in the Supreme Court as on a separate piece of paper.

3. APPEAL AND ERROR (§ 795)—DISMISSAL— MOTION INCLUDED IN BRIEF.

A brief attacking the jurisdiction of the Supreme Court to entertain a writ of error by alleging that the pecuniary interest of certain parties would be directly affected by the disposition, and that such parties were not before the court as required by Rev. St. 1909, § 2058, was sufficient, though the statement was not written out in separate form.

4. APPEAL AND ERROR (§ 516)—"RECORD"— SCOPE.

The record proper in civil cases consists of the process and return, the pleadings, and the verdict.

5. APPEAL AND ERROR (§ 9)—WRIT OF ERROR—REMEDY IN LOWER COURT.

A writ of error will not be entertained to afford relief where the same relief can be obtained in the trial court.

6. APPEAL AND ERROR (§ 9)—WRIT OF ERROR—REMEDY IN LOWER COURT.

Where, if plaintiff in error was entitled to any relief, it was because of the fact that the judgment was rendered on an amended petition for a larger sum than was claimed in the original petition, to which he suffered a default, he might have had redress by timely proceedings in the trial court, and a writ of error would not lie.

Error to Circuit Court, Boone County.

Action by Lizzie Smith against John Moseley and others. There was a judgment, and said Moseley brings error. Writ of error quashed, and proceedings dismissed.

Lizzie Smith, one of the 22 heirs at law of William Moseley, deceased, filed a partition suit, making the other heirs defendants, in the circuit court of Boone county, on November 10, 1904, to sell for division the remaining real estate of their ancestor, who died in 1882, leaving a will setting forth the amount of the several advancements made in his lifetime to his children, and requiring such advancements to be charged to the respective child who had received them on the final distribution of the testator's estate. The petition prayed for the sale of the land, since it was not divisible in kind on account of the large number of heirs, and that the proceeds should be divided according to the directions of the will of the testator. At a final settlement of the personal estate of the testator, to wit, in 1889, the advancements made to all of the children of the testator were equalized, except as to the advancement made to John P. Moseley, which had been so large that it exceeded his distributive share in the personal estate of his father by $522. John P. Moseley died before the bringing of the partition suit, leaving his son, John Moseley, and three other children as his heirs. John Moseley was personally served with process and a copy of the petition in the partition suit, and made default therein, for which judgment was rendered against him. Thereafter Lizzie Smith filed an amended petition, making substantially the same allegations contained in her original petition, except a further allegation that the overplus of the advancement to John P. Moseley beyond his distributive share in his father's estate, to wit, $522, should bear interest at 6 per cent. from the date of the final settlement of the personal estate, to wit, February 13, 1889, and claiming that the amount, with interest so reckoned, should be charged against the portion of the proceeds of the sale of the land coming to John Moseley and the three other heirs of John P. Moseley. Thereafter, such proceedings were had in the partition suit as at the June term, 1905, of the circuit court of Boone county, had resulted in a confirmation of the sale of the land and the execution of deeds to the purchasers, and a division of the proceeds among all the heirs except John Moseley, who refused to accept the amount tendered him by the sheriff, because the court in its judgment on the amended petition had charged him as one of the four children and heirs of John P. Moseley with his proportion of the interest on the advancement made to his father. Thereafter, on the 9th day of October, 1906, John Moseley filed a written motion in said cause in the circuit court of Boone county, praying the setting aside of so much of the judgment rendered therein on the amended petition, as charged the amount coming to him as one of the four children of John P. Moseley with a proportion of the sum of the advancement and interest thereon made to his father. He alleged as the ground of this motion that no such claim was made in the original petition of which a copy and summons had been served on him and wherein he had defaulted. This motion to set aside and vacate said judgment is still pending in the circuit court of Boone county. On the same day, October 9, 1906, the said John Moseley sued out a writ of error from this court to bring before it for review the said judgment rendered in the circuit court of Boone county. In his written application for the writ, he set forth the name of Lizzie Smith as plaintiff, and the names of himself and 20 other heirs as being parties to the partition suit wherein the judgment had been rendered in the circuit court of Boone county, but he took out a writ in his own name as plaintiff in error without joining any of his codefendants therein or making any showing for failing so to do. Neither have his codefendants appeared nor are they represented by counsel in the writ of error pending in this court. The only party to this suit, except the plaintiff in error, is the defendant in error, the tiff below, who, though not notified, has appeared by counsel, who have filed a brief on her behalf, asking that the writ of error be dismissed, first, because the codefendants of plaintiff in error have not been served with notice, and are not before this court; second, because the same questions presented to this court by this writ of error are now pending in the motion filed by the plaintiff in error in the court below; third, because the judgment of the court below has been so far executed and performed that there is no fund in that court which could be disposed of; and asking, fourth, that, if this court assumes jurisdiction, then judgment below should be affirmed.

Barclay, Fauntleroy & Cullen, for plaintiff in error. C. B. Sebastian, for defendant in error.

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

1. Writs of error are writs of right at common law and by statute, but they are issuable "subject to the regulations prescribed by law." R. S. 1909, § 2054. Among other regulations prescribed for the issuance of these writs, the statute permits it to be sued out within one year after the judgment suit to be reviewed. R. S. 1909, § 2056. The statute, however, in reference to the parties entitled to the writ, provides that they "shall all join in such suit * * * and if any are omitted, the writ shall be quashed on motion of the defendant in error," made before the submission of the cause and supported by the affidavit. R. S. 1909, § 2058. As to the fact of nonjoinder of proper parties, the statute provides, "if it be established or admitted," then the plaintiff in error may answer, showing that "persons not joined" are incapable mentally of consenting or are nonresidents, etc. R. S. 1909, § 2059. The subsequent sections of the statute give the party prosecuting the writ a further answer to the fact of nonjoinder when "established or admitted" by permitting him to show that the persons not joined refused to join, and by pointing out a statutory method for him to bring them into court; and, if they fail to appear, that they shall ...