Thompson v. Ruddick

• Decision Date: 03 July 1908
• Parties: THOMPSON et al. v. RUDDICK et al.
• Court: Missouri Supreme Court

111 S.W. 1131

213 Mo. 561

THOMPSON et al. v. RUDDICK et al.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. APPEAL AND ERROR—ABSTRACTS OF RECORD —FORM AND ARRANGEMENT.

There is a significant distinction between matter of exception and matter of record proper, and in some reasonable way an abstract should indicate by its arrangement what matter is abstracted from the bill of exceptions and what is record proper.

2. SAME—EFFECT OF FAILURE TO MAKE PROPER ABSTRACT.

An appeal will not be dismissed because the abstract fails to show what exceptions were preserved in a bill of exceptions, since an appeal lies without a bill of exceptions, and review may be had on the record proper.

Appeal from Circuit Court, Clark County; Chas. D. Stewart, Judge.

Ejectment by Joseph W. Thompson and others against Elizabeth Ruddick and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Whiteside & Yant, for appellants. T. L. & L. J. Montgomery, for respondents.

LAMM, J.

In 1836 William H. Thompson entered the S. E. ¼ S. E. ¼ and the S. W. ¼ N. E. ¼ of section 12, township 63, range 6, in Clark county, Mo., and died in the 50's or 60's at Palmyra. The land (we infer) was in the Mississippi river bottom and shown to be subject to overflow. Thompson never took possession. On December 15, 1836, he by two several deeds conveyed a one-eighth interest each to Erastus Palmer and to William Brown. On April 27, 1837, he deeded a one-eighth interest to Stephen Negus and John Barclay. A quarter of a century or more ago one William Ruddick took possession under color of title, built dykes and levees, dug ditches, cut the willows, subdued the land, and (struggling with recurring floods) farmed it, paid the taxes for 24 years, and died leaving a widow and children. Ruddick's title originated in tax deeds, and in a quitclaim deed from the executors of the will of said William Brown. Finally plaintiffs, as heirs of Thompson, sued defendants as the widow and heirs of said Ruddick in partition. Such things developed in that case that plaintiffs were forced to bring this ejectment against the widow and heirs of Ruddick and their tenants in possession to try title and recover possession of a five-eighths interest, as a step towards partition. Plaintiffs' theory at the trial was that, while defendants and their ancestor were in possession for the statutory period of limitations, yet such possession was merely that of one out of several tenants in common; i. e., it was held for all, and therefore the statute of limitations did not run in their favor to create title or as a bar. And such is their position on appeal. The theory of defendants was the opposite of that. As a bar to ejectment, and as creating title in themselves, they pleaded by way of answer that said Ruddick and his tenants, and since his death these defendants and their tenants, have held open, notorious, continuous, and exclusive adverse possession under claim of ownership as against the whole world for more than 10 years. And such is now their contention. At a jury trial in the Clark...