West v. McMullen

• Decision Date: 29 November 1892
• Citation: 20 S.W. 628,112 Mo. 405
• Parties: West et al. v. McMullen et al., Appellants
• Court: Missouri Supreme Court

20 S.W. 628

112 Mo. 405

West et al. v. McMullen et al., Appellants

Supreme Court of Missouri, Second Division

November 29, 1892

Appeal from Cass Circuit Court. -- Hon. Chas. W. Sloan, Judge.

Affirmed.

Robert T. Railey and James T. Burney for appellants.

(1) Plaintiff had abandoned her homestead in the premises in controversy. Smith v. Bunn, 75 Mo. 559; Kaes v Gross, 92 Mo. 647; Duffey v. Willis, 99 Mo 132. (2) She, in connection with her present husband, has a full and complete legal right to a homestead in the lands upon which they now live; which is conclusive evidence of an abandonment of her homestead right in the land in controversy. Thompson on Homesteads, sec. 279; Kaes v. Gross 92 Mo. 647.

Noah M. Givan for respondents.

(1) Appellants have no standing here, having abandoned the case before trial. No evidence that was heard at the trial is in the record or before this court. The taking of a nonsuit by plaintiff entitled her to another trial whether her nonsuit was voluntary or enforced. There had been no "judgment heretofore rendered against plaintiffs" for them to stand on. Revised Statutes, 1889, sec. 2084; Water Works v. School Dist., 23 Mo.App. 227; Freeman on Judgments, sec. 261, 261a; Taylor v. Larkin, 12 Mo. 103. (2) Even if the case is properly here, plaintiff had not abandoned her homestead in the lands in suit, and had not acquired a right of homestead in the lands of her present husband. Smith v. Bunn, 75 Mo. 559; Duffey v. Willis, 99 Mo. 132. (3) The homestead in controversy was acquired by the widow by virtue of the statute, which passes the homestead to and vests it in her until her death, as effectually as though conveyed by deed. It was acquired by inheritance by reason of her being his widow, and not by occupancy, and she could not lose it by abandonment. Revised Statutes, 1889, secs. 5435, 5439. (4) Even if the setting aside of the nonsuit were in effect the same as the setting aside a verdict or judgment, it was a reasonable and just exercise of trial court's discretion, and was not because of plaintiff's surprise or mistake growing out of any omission of hers. State v. Griffith, 63 Mo. 545; State ex rel. v. Adams, 84 Mo. 310; Rickroad v. Martin, 43 Mo.App. 603; Ins. Co. v. Shultz, 30 Mo.App. 91; Fretwell v. Laffoon, 77 Mo. 26; Smith v. Wheeler, 27 Mo.App. 16.

OPINION

Gantt, P. J.

This action was originally commenced November 20, 1886, by Mary A. McMullen, the widow of George McMullen, for the assignment of her dower and homestead in the lands described in the petition, of which he died seized, and was occupying as a homestead at his death. The defendants are the administrator and surviving brothers and sisters of George McMullen. No children were born of the marriage of plaintiff and George McMullen.

The action thus commenced was continued for cause until May, 1889, when Mrs. McMullen intermarried with John T. West. Accordingly, on the sixth of January, 1890, her husband, John T. West, was made a party plaintiff, and an amended petition filed.

To the amended petition defendants answered, and for their defense alleged that the widow since her marriage to Mr. West had removed to his residence and abandoned the homestead, and thereby lost her right to a homestead in the lands. Plaintiffs denied this in their reply.

At the May term, 1890, the cause came to trial. The plaintiff offered evidence of her marriage to George McMullen, his ownership of the lands described, their occupancy for eighteen years as a homestead, his death, and her continued occupancy, until she began this suit for the assignment of her homestead and dower in the lands, her marriage to Mr. West, removal to his home, and that she continued to control the lands, renting them to tenants and reserving a portion for herself, down to the time of the trial.

At the conclusion of the evidence on this trial plaintiffs asked an instruction that, under the pleadings and evidence, Mrs. West, as the widow of George McMullen, was entitled to a homestead in the lands described in the petition, which the court refused, and thereupon took a nonsuit with leave to move to set the same aside, and on the twenty-eighth day of May, 1890, filed their motion to set aside said nonsuit. This motion was continued to the September term, 1890. On the twenty-fifth of September, 1890, this motion was sustained, and defendants excepted to the action of the court in granting it, and at the same time announced that "they abandoned the cause at this point, and would stand on the judgment heretofore rendered against plaintiff." The cause was then continued to the January term, with leave to defendants to file a bill of exceptions by the first day of the January term, which was done. Afterwards at the January term, the cause was again reached for trial, plaintiffs announced ready, and the defendants declined to appear; thereupon the court heard the evidence, and rendered a judgment for plaintiffs as prayed in their petition, and appointed commissioners to assign her homestead and dower, and at the same term the commissioners filed their report, and the same, having remained on file three days as required by the rules of the court, was, on motion of plaintiffs, taken up, considered and affirmed by the court, and final judgment rendered confirming the same.

From this judgment so rendered this appeal is taken.

The errors assigned are, first, that the court erred in overruling defendants' demurrer to the amended petition; second, that the court erred in setting aside the nonsuit; and, third, rendering judgment for plaintiffs on the facts.

I. The defendants having answered after their demurrer was overruled abandoned the grounds of their demurrer. Scovill v. Glasner, 79 Mo. 449; Pickering v. Tel. Co., 47 Mo. 457.

II. It will be observed from the statement of the case that the appellants have not brought to this court any of the evidence heard at the January term, 1891, when the judgment was rendered in this cause, nor have they saved any exceptions to any of that evidence. So that, as the case stands here, the circuit court, having jurisdiction, both of the subject-matter and over the persons of plaintiffs and defendants, rendered a judgment for plaintiffs, and no exceptions were saved to any ruling it made in reaching that judgment; but we are asked to set aside this judgment because the same court in this cause set aside a nonsuit which plaintiffs had taken at a former term on account of an adverse ruling of the court, and gave the plaintiffs a new trial.

When the court set aside the nonsuit, the parties were right where they were when the issues were first made up. No right of the plaintiffs or defendants had been adjudicated. Plaintiffs had been driven to a nonsuit, and the setting aside simply restored them to a standing in court; they occupied precisely the same position as if they had voluntarily dismissed their suit and commenced a new action and defendant had answered. No action of the court previous to this was conclusive either upon the court or the parties. Had the court declined to set aside the nonsuit, this would not have been an adjudication, constituting a bar to a...