Sullivan v. Holbrook

CourtUnited States State Supreme Court of Missouri
Citation211 Mo. 99,109 S.W. 668
PartiesSULLIVAN v. HOLBROOK et al.
Decision Date01 April 1908

Rules of the Supreme Court, rule 15 (73 S. W. vi), require all briefs to contain, separate from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of authorities under each point, and any brief, failing to comply with this rule, may be disregarded by the court, also that, in citing authorities, the names of the parties to any case cited shall be given, as well as the number of the volume and page. Rule 16 (73 S. W. vi), provides that, if any appellant in a civil case fails to comply with rule 15, the court may dismiss the appeal. St. Louis Court of Appeals rules 15, 17, 19 (67 S. W. ix), are substantially the same. The brief of an appellant in an equity case omitted the names of the parties in the cases cited as authority, and did not separate the legal propositions relied on for reversal from comments of counsel arguendo. The authorities cited, and the only legal propositions advanced, were interwoven with comments of counsel in 26 solid pages of printed matter, labeled, by counsel, "Argument." Held, that both the spirit and the letter of the rules of both courts were violated; and, as appellant had no brief within the intendment of the rules, the judgment would be affirmed.

3. JUDGMENT — EQUITABLE RELIEF — DEFENSES — ESTOPPEL.

Where a party to a partition suit was of age at the time of the partition, and accepted the fruits of the litigation and enjoyed them for years, she is estopped to attack the partition proceedings.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Kate Hardin Sullivan against M. Holbrook and others. From a judgment for defendants, plaintiff appealed to the St. Louis Court of Appeals from which it was certified to the Supreme Court. Affirmed.

Charles Sullivan, for appellant. V. O. Coltrane, for respondents.

LAMM, J.

On November 12, 1903, Mrs. Sullivan lodged a bill in equity in the Greene circuit court, the object and general nature of which was to set aside and vacate (1) an executed judgment in partition; (2) the deed to the purchaser (Seamans) at said partition sale; (3) certain conveyances from Seamans to Holbrook, and from Holbrook to Judge Goode (and others between the Jarretts and Seamans) conveying lot 1 in E. T. Robberson's addition to the city of Springfield, in said county; (4) to declare, establish, and execute a trust in said lot under the will of Sue E. P. Montgomery, the maternal ancestor of plaintiff, who died testate seised of said real estate; (5) to determine and establish the rights of plaintiff under the will of her said mother; (6) to have an accounting of rents and profits; and (7) for general equitable relief. Among other things, it was alleged in the bill and shown by the proofs that plaintiff attained her majority on January 9, 1894. That she was thereafter (in 1895) made a party defendant in a partition suit, instituted in the Greene circuit court, having for its object the partition of said real estate among certain heirs and the grantees of certain heirs of said Sue E. P. Montgomery, and the sale of said lot. That proceedings were had in that case, resulting in a partition and sale of the lot in 1895. That plaintiff received and appropriated her share of the proceeds of that sale. The record shows plaintiff executed, in that behalf, the following acquittance:

"Office of Sheriff of Greene County, Mo., February 3rd, 1896. Received of F. M. Donnell, Sheriff of Greene County, the sum of two hundred and twenty-eight dollars and 75/100 dollars, being in full of my distributive share of real estate sold by partition wherein E. D. Seamans was plaintiff and Kate Hardin et al., were defendants. $228,75. Kate Hardin.

"State of New York, County of New York — ss.: On this 8th day of February, 1896, before me personally appeared Kate Hardin, personally known to me to be the same person and acknowledged that she executed the signature on the within receipt for the purposes mentioned, and of her own free will and deed, and that she signed the same. Witness my hand and seal the day and date above stated. R. P. Hess (158), Notary Public, New York Co." [Seal.]

No appeal was taken from the interlocutory judgment in partition, and none from the order approving the report of sale. The allegations of the bill, on which it is sought to overturn the partition, the sale, and the sundry deeds made in connection therewith, are (in substance) fraud in the concoction of the judgment between defendants Holbrook, Seamans, and J. H. Jarrett in divers enumerated particulars. It is also alleged that Judge Goode, who subsequently purchased a small part of the lot from defendant Holbrook, had notice of the existence of a trust created by Mrs. Montgomery's will, which (it is said) was an impassable barrier in the road of partition, and which latter was made in violation of the express terms of the will. Plaintiff in this suit was originally brought into the partition suit as a party defendant by constructive service, eventually, however, appearing by an attorney and filing answer. There were two sales made under the judgment in partition — the first, set aside for inadequacy in the accepted bid. In her motion filed in that case, challenging the confirmation of the first sale, she appeared by other attorneys. A second sale was made and confirmed. Afterwards she partook of the proceeds, and executed the receipt hereinbefore set forth. To avoid the effect of that receipt and these appearances she alleges not that she did not receive the money represented by the receipt, but that she was deceived and misled in the premises in...

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    ... ... following cases: Hughes v. Winkleman, 243 Mo. 81; ... Bank v. Hutton, 224 Mo. l. c. 53; State v ... Boehm, 184 Mo. l. c. 209; Sullivan v. Holbrook, ... 211 Mo. 99; Rusch v. Valle, 237 S.W. 111; Frick ... v. Millers National Ins. Co., 279 Mo. 156; Vahldick ... v. Vahldick, ... ...
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