Windes v. Earp

• Decision Date: 14 June 1899
• Citation: 150 Mo. 600,51 S.W. 1044
• Parties: WINDES et al. v. EARP et al.
• Court: Missouri Supreme Court

51 S.W. 1044

150 Mo. 600

WINDES et al. v. EARP et al.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

JUDGMENT IN PARTITION — MOTION TO SET ASIDE — APPEAL.

Where a judgment in partition is entered without objection, a party cannot indirectly, by motion, assail it or the court's refusal to set it aside after the time when it could be challenged by appeal, as, under Sess. Acts 1895, p. 91, allowing an appeal from interlocutory judgments in partition, if exceptions are not timely made, the judgment will be conclusive.

Appeal from circuit court, Camden county; Argus Cox, Judge.

Proceedings on motion by Nancy Windes and another against J. C. Earp and others to modify a decree in partition. From an order overruling the motion, movants appeal. Dismissed.

Nixon & King, for appellants. Carter & Moore, for respondents.

ROBINSON, J.

The original proceeding in which the motion to be considered on this appeal was filed was commenced in the Camden county circuit court by appellant as plaintiff and heir at law of Thomas Kelly, deceased, against the other heirs of said Kelly and one J. C. Earp (who became interested with them in the land by purchase), to partition the real estate belonging to said Thomas Kelly in his lifetime. H. H. Windes, the husband of appellant, was joined as a party plaintiff in the suit. At the May term, 1894, when all the parties to the cause were present in court, the case was taken up for hearing, and the court proceeded to ascertain their respective interests, and to determine whether the land should be partitioned in kind or same ordered sold and the proceeds be partitioned. At the August term, 1894, the court entered its judgment of record therein, setting out the interests of the parties so ascertained, together with the charges against each interest, and, finding that the nature and amount of the property sought to be divided and the number of the owners thereof were such that partition of the land in kind could not be made without great prejudice to the owners, made its order that said property be sold according to law at the next term of court, the purchaser to pay one-third cash and the remaining two-thirds in equal payments in 12 and 24 months, respectively, and that the proceeds of said sale be partitioned between the parties according to their respective interests as set out in said judgment. As to what was done in the original proceeding at the two succeeding terms of court, there is nothing disclosed in the record before us, except what may be inferred from the recitation contained in the motion filed by the plaintiff Nancy T. Windes at the August term, 1895, the action of the court in overruling which constitute the grounds of plaintiffs' appeal. The motion is in words and figures as follows: "Now comes the plaintiff Nancy Windes, one of the above-named plaintiffs, and states that in rendering judgment in said proceedings the rents and profits were charged against this plaintiff, Nancy Windes, and that the same was erroneously so charged, in that said premises, at time of the partition proceedings, were rented and occupied by H. H. Windes, a tenant of Mrs. Kelly, and he alone is chargeable with the rents and profits. Your petitioner further states that the purchase money of said sale is unpaid, and that the said Earp is committing waste upon said premises by cutting valuable timber off from said premises, and impairing the security of the money due this plaintiff as an heir of said former owner, Thomas J. Kelly. Whereupon the plaintiff demands that said rents and profits be charged against the said tenant, and that proper orders be issued to protect the said property from waste." On plaintiffs' motion being called up for hearing, the following proceedings were had: "In the Circuit Court of Camden County — August Term, 1895. H. H. Windes et al., Plaintiffs, vs. James C. Earp et al., Defendants. Plaintiffs offered in evidence written contract for the renting of the land in controversy to H. H. Windes & Son. Defendants, by counsel, object to the contract for the following reasons: (1) For the reason it is incompetent,...