Vinson v. Johnson, 56344
| Decision Date | 20 August 1986 |
| Docket Number | No. 56344,56344 |
| Citation | 493 So.2d 947 |
| Parties | Gene D. VINSON, et al v. Faye V. JOHNSON, et al. |
| Court | Mississippi Supreme Court |
H. Gerald Hosemann, Harper & Hosemann, Vicksburg, for appellants.
Jack G. Moss, Raymond, for appellees.
Before HAWKINS, P.J., and DAN M. LEE and ANDERSON, JJ.
Gene D. Vinson (Vinson) appeals from a decree of the chancery court of the Second Judicial District of Hinds County confirming a partition in kind of realty in which he owned an undivided one-fifth interest in fee.
Once again we have complaints in an appellant's brief of errors committed in the trial court, when the aggrieved party has nothing in the record to support his contentions. Once again we must tell attorneys that we do not consider alleged errors which have no support in the record.
Vinson alleges the chancellor denied him the opportunity to testify, to cross-examine witnesses, and that the property should have been sold rather than divided. Finding the record as clean as a hound's tooth on all his assignments, we affirm.
Vinson, as one of the five heirs-at-law of intestate Walter M. Vinson, was also one of the defendants in a partition action filed by other heirs to approximately 170 acres of realty in Hinds County.
Vinson, a resident of Chicago, filed an answer in which he alleged affirmatively that the property could not be divided in kind because of a four-bedroom brick dwelling and lake were situated on the land, and that the realty should be sold. It would appear that some attorney drafted Vinson's answer, but the record is silent as to whether an attorney ever represented Vinson beyond this.
On the 18th day of October, 1984, the chancery court entered a final decree ordering a partition in kind. The decree appointed three commissioners and directed that they file their report no later than January 15, 1985; and that the report would come on for confirmation for the chancellor in vacation on January 30, 1985, at 9:00 a.m. The commissioners partited the land in kind and filed their report on January 15, 1985.
No objections or exceptions to the report were filed by Vinson or anyone else. On January 30, 1985, the chancellor entered a final decree confirming the commissioners' report.
The record does not reflect whether any evidence was taken either when the decree for partition or the confirmation decree was entered.
On appeal Vinson assigned two errors, complaining first that the chancellor entered a partition decree without giving him an opportunity to cross-examine witnesses, or to present witnesses in his own behalf, and without taking any testimony whatever. Vinson further asserted that the lower court erred in entering the confirmation decree when one of the other tenants in common was especially favored in the partition, and the commissioners had failed to follow all the technical requirements of Miss.Code Ann. (1972) Sec. 11-21-21. He additionally claims in his rebuttal brief that he was denied to make a record when the confirmation decree was entered.
The record in this case shows the plaintiffs filed a complaint for partition in accordance with Miss.Code Ann. (1972) Secs. 11-21-3 and 11-21-5. Process was had on Vinson, and he filed an answer signed by himself and notarized. The title was not controverted.
The chancery court entered a decree for partition in kind in accordance with Miss.Code Ann. (Supp.1984) Secs. 11-21-11 and 11-21-15. Miss.Code Ann. (Supp.1984) Sec. 11-21-11 provides that a sale should never be ordered in the absence of the petition alleging and proof showing either that a sale will better promote the interests of the parties, or a division in kind could not be made. We have consistently held the same. Mathis v. Quick, 271 So.2d 924 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919 (1963); Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908 (1949); Smith v. Stansel, 93 Miss. 69, 46 So. 538 (1908). We have also held that a tenant in common seeking a partition by sale has the burden of proving his case and comes under the prerequisite statutory provision for ordering a sale as opposed to a division in kind. Bailey v. Vaughn, 375 So.2d 1054 (Miss. 1979); Dailey v. Houston, supra; Hogue v. Armstrong, 159 Miss. 875, 132 So. 446 (1931); Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593 (1924).
There is nothing in the record which suggests the chancery court failed to strictly follow the partition statutes and acted with full authority in ordering the partition in kind.
The record also shows the commissioners strictly complied with Miss.Code Ann. (1972) Sec. 11-21-17, 11-21-19, 11-21-21, and 11-21-25 in making the division and reporting it to the court.
It should also be noted that Miss.Code Ann. (1972) Sec. 11-5-107 was complied with. This statute is not in the partition chapter of the Code, but requires, inter alia, that a report of commissioners must be filed in court at least five days prior to the confirmation.
Miss.Code Ann. (1972) Sec. 11-21-25 provides that the commissioners' report "on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court."
The statute requires that the commissioners' report be on file in the chancery clerk's office at least five days before the confirmation decree. In this case it was on file ten days. Beginning October 18, 1984, Vinson knew when the commissioners' report would be filed, and when it would be presented to the chancellor for approval. He had ten days within which to file some exception as he now belatedly attempts on appeal. The statute specifically requires that exceptions be filed and in writing prior to the confirmation decree.
The record does not show Vinson filing any exception whatever to the report.
The record finally shows that on January 30, 1985, precisely at the time and place set out in the October 18, 1984, decree, the chancellor entered his final confirmation decree confirming the sale as he was fully authorized to do under Miss.Code Ann. (1972) Sec. 11-21-35.
There is nothing in this record to suggest anything other than a scrupulous adherence by the chancery court and the chancellor in vacation to our laws as to the subject matter jurisdiction of the parties and the partition statutes.
On appeal Vinson claims he was treated unfairly in that another heir got a bigger piece of the pie, and he was denied an opportunity to testify and cross-examine the commissioners. Vinson further contends that the land should have been sold in the first place.
Aside from Vinson's failure to adhere to the aforementioned statutory prerequisites of Miss.Code Ann. (Supp.1984) Sec. 11-21-11, Vinson also ignores the principle universally applied by appellate courts that in the absence of...
To continue reading
Request your trial
-
Shaw v. Shaw, 89-CA-32
...statutory requisites must affirmatively appear in the record in order for the court to decree a partition by sale. Vinson v. Johnson, 493 So.2d 947, 948 (Miss.1986); Monaghan, 487 So.2d at 820; Mathis [v. Quick, 271 So.2d 924,] 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 91......
-
Farris v. State, No. 98-KA-00600-SCT.
...Roussel v. Hutton, 638 So.2d 1305, 1319 (Miss.1994)(citing Kirk v. Koch, 607 So.2d 1220, 1223 (Miss. 1992)); see also Vinson v. Johnson, 493 So.2d 947, 949 (Miss.1986); Jackson v. State, 199 Miss. 853, 25 So.2d 483 (1946). While there was a presumption that Chancellor Taylor's orders were f......
-
Mingo v. State
...Court declines to review such bare allegations[,] . . . which are not supported by the record on appellate review."); Vinson v. Johnson, 493 So.2d 947, 950 (Miss. 1986) ("this Court will not review any allegation of error which is unsupported by the record."). There is no indication that th......
-
MEANS v. State of Miss.
...we must presume that the trial court acted properly. Moawad v. State, 531 So.2d 632, 635 (Miss.1988). See also Vinson v. Johnson, 493 So.2d 947, 949 (Miss.1986) (citing Fontaine v. Pickle, 254 So.2d 769 (Miss.1971); Walker v. Jones County Cmty. Hosp., 253 So.2d 385 (Miss.1971); Harvey v. Du......