West v. West
| Decision Date | 15 November 1937 |
| Docket Number | No. 19034.,19034. |
| Citation | 110 S.W.2d 398 |
| Parties | WEST v. WEST. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Atchison County; Thomas A. Cummins, Judge.
"Not to be reported in State Reports."
Action by Olen West against Rose West. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Clayton W. Allen, of Rockport, for appellant.
Henry P. Savage, of Rockport, for respondent.
CAMPBELL, Commissioner.
Plaintiff's petition alleges that defendant committed waste on land in Atchison county, Mo., in which he owned an estate in remainder, to his damage in the sum of $1,050, and that, unless defendant is restrained, she will commit further waste on said land. The answer is a general denial. The judgment was for the plaintiff in the sum of $125 and restrained the defendant from committing further waste on the land. The defendant has appealed.
The defendant contends the action was at law, and therefore she had the right to request the court, as she did, to state in writing its conclusions of fact found separately from the conclusions of law under the provisions of section 952, R.S.1929 (Mo.St.Ann. § 952, p. 1225).
A suit to recover damages for waste is undoubtedly a legal action. Sections 2616 and 2623, R.S.1929 (Mo.St.Ann. §§ 2616, 2623, pp. 4854, 4855). In the instant case the prayer for injunctive relief did not change the legal action "into one solely in equity." Geltz v. Amsden, 125 Mo.App. 592, 102 S.W. 1037, 1038.
Moreover, the parties evidently thought the action was at law because they waived a jury and tried the cause to the court.
The request for conclusions of facts and conclusions of law was filed after the close of the evidence and before the rendition of the judgment. The court failed to make findings of facts or state conclusions of law. This was reversible error. O'Neal v. Perry et al. (Mo.App.) 96 S.W.2d 900; White v. Shepherd of the Hills Life Insurance Co. (Mo.App.) 62 S.W.2d 487.
The defendant further insists there was no substantial evidence tending to prove the alleged waste. Defendant is not in position to urge that contention. The request for finding of facts as a matter of law admitted the case was one of fact. Cantley, State Finance Com'r, et al. v. American Surety Co. of New York et al., 225 Mo.App. 1146, 38 S.W.2d 739.
Had finding of facts been made as requested, we would examine the record to ascertain whether or not there were facts supporting the finding. In the absence of a finding, ...
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