Young v. Downey

• Decision Date: 06 June 1899
• Citation: 51 S.W. 751,150 Mo. 317
• Parties: YOUNG v. DOWNEY et al.
• Court: Missouri Supreme Court

51 S.W. 751

150 Mo. 317

YOUNG v. DOWNEY et al.

Supreme Court of Missouri, Division No. 2.

June 6, 1899.

APPEAL — RECORD — MOTION FOR NEW TRIAL — MOTION IN ARREST OF JUDGMENT — BILL OF EXCEPTIONS — TIME FOR FILING — SALE OF DECEDENT'S LANDS — NOTICE — RATIFICATION BY INFANT — EVIDENCE — STARE DECISIS — GUARDIANS — APPEARANCE.

1. A record recited that a verdict was rendered at the August term, 1898, and that "on the same day, and within four days after rendition of judgment," a motion for new trial was filed. Held, that the motion for new trial was filed within four days after trial, as required by Rev. St. 1889, § 2243, providing that the motion shall be made within four days after the trial, if the term shall so long continue, and, if not, then before the end of the term.

2. A motion in arrest of judgment cannot be considered on appeal, where it is not set forth in a bill of exceptions, and the record does not show when it was filed or when it was overruled.

3. Under Rev. St. 1889, § 2168, requiring the filing of a bill of exceptions during the term at which the exceptions were taken, or within such time thereafter as the court may allow, a bill of exceptions filed during a term subsequent to that at which the trial was had is filed in time, where the cause was continued to such subsequent term on motions for a new trial and in arrest of judgment, and the bill was filed within the time fixed by the court on overruling the motions.

4. Gen. St. 1865, p. 498, § 25, requiring that a notice to show cause why a decedent's land should not be sold to pay debts shall be published four weeks before the term of court at which the order of sale is to be made, is not complied with, where the first publication is made less than 28 days prior to the first day of the term, though four insertions in a weekly newspaper are made before said day, and a sale made thereon is void.

5. A decision will not be adhered to on the ground of stare decisis, where it is not supported by reason or authority, and is in conflict with prior decisions, and is of so recent promulgation that it is not probable that property rights will be seriously affected by its being overruled.

6. An appearance in a probate court, and objection to a void sale of decedent's land, by a mother for her infant child, will not render an order confirming the sale binding on the child, where she had not been appointed as legal guardian, and her appointment a few days later will not confirm her unauthorized act.

7. In ejectment, on an issue as to whether a sale of an infant's interest in the land of his deceased ancestor had been lawfully made, a receipt by his guardian, who was also administrator, of all claims growing out of the guardianship or administration in favor of the ward is inadmissible, as it does not tend to show a confirmation of the sale of the land by the infant.

Appeal from circuit court, Platte county; W. H. Roney, Judge.

Ejectment by Stephen Leo Young by his guardian, John W. Young, against John M. Downey and another. Judgment for plaintiff, and defendants appeal. Affirmed.

J. W. Coburn, Anderson & Carmack, and C. O. Tichenor, for appellants. Jas. W. Boyd, J. W. Coots, and Benj. Phillip, for appellee.

BURGESS, J.

This is an action of ejectment, and is before us upon the second appeal. The former appeal was by the plaintiff. The judgment was then reversed, and the cause remanded for further trial. Young v. Downey, 146 Mo. 261, 46 S. W. 1086. From the judgment rendered upon the last trial, both parties appealed; but, plaintiff having abandoned his appeal, the case is now before us upon defendants' appeal. The facts on the last trial, as disclosed by the record, are substantially the same as upon the former trial, and are fully stated in the opinion in that case.

Plaintiff's contention is that no matter of exception can be passed upon in this appeal, because neither the motion for a new trial nor in arrest of judgment is properly preserved in the bill of exceptions; that the bill of exceptions does not affirmatively show that the motion for a new trial was filed in time; that the bill of exceptions shows upon its face that it was not filed at the term at which the motions for a new trial and in arrest were overruled; and there is nothing in the bill showing that any leave was granted to file it at any subsequent time. The verdict was rendered at the August term, 1898, and it is recited in the record: "And on the same day, and within four days after rendition of judgment in the cause, the defendants filed their motion for a new trial of this cause, as follows." Then follows the motion, which is set out in full. But it is insisted that, as the statute (Rev. St. 1889, § 2243) requires that all motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue, and, if not, then before the end of the term, the record must affirmatively show that the motion was filed within four days after verdict, and that this is not done by the fact that the record shows that the motion was filed within four days after judgment, because the presumption must be indulged that the judgment was not entered until four days after the return of the verdict. But no such presumption can or should be indulged, for the reason that the record shows that the verdict was returned and the judgment rendered upon it at the same time. This is the universal practice in this state; and, as the record shows that the motion for a new trial was filed within four days after judgment, it must of necessity have been filed within four days after the verdict. This we think a fair construction of the record. The record shows that a motion in arrest was also filed by defendants, taken up, and overruled; but it does not appear when it was filed, whether within four days after verdict or not, or when overruled, nor is the motion set forth in the bill of exceptions, and cannot, as a matter of course, be considered.

Another contention is that the bill of exceptions was not filed in time, and that no matter of exception therein contained can be considered. But this seems to be a misconception of what the record does in fact show. While the bill was not filed at the August term, the record shows that, by an entry of record made at said term, the cause was continued on the motions of defendants for a new trial and in arrest, and that at the next term, which began on the first Monday of December next following, and on the 7th day of the month, the motions were overruled, and defendants, by entry of record, given leave to file bill of exceptions on or before the 31st day of January, 1899, which the record also shows was filed on the 30th day of that month. It is clear from these record entries that the bill was filed in time. Rev. St. 1889, § 2168.

It is insisted by defendants that the opinion of the court when the case was here before is not in harmony with the well-established cases on the points in controversy, and especially with respect to the sufficiency of the notice given by the administrator of his purpose to apply to the probate court of the county for an order to sell the land in controversy for the payments of debts, in which it was held that the notice was insufficient, upon the ground that it was only published for twenty-four days, when the statute (Gen. St. Mo. 1865, p. 498, § 25) required that it be published for four weeks. Haywood v. Russell, 44 Mo. 252, is relied upon as sustaining this contention; but that case is distinguishable from the one in hand in this: In that case the statute required that the notice should be published for four weeks, and that the last insertion should be at least four weeks before the commencement of the term, not that the last week should be four weeks before the term. The notice was published in a weekly paper in four consecutive numbers, which made four weeks, and it was held that the four weeks should end before the time, and that it was sufficient if the notice was published for four weeks, and if the last insertion, which was the commencement of the fourth week, was four weeks before the commencement of the term, it was a compliance with the law.

But the question with which we have to deal is not as to whether the last insertion of the notice in the paper was four weeks before the term, as in that case, but whether the notice was published for four consecutive weeks before the first day of the term at which the application for the order to sell the land was made; and in this respect there is, we think, a very material difference in the two cases, and that there is no conflict between them. State v. Tucker, 32 Mo. App. 620. The notice in this case was published on the 8th, 15th, 22d, and 29th of September, while the first day of the court at which the order of sale was made began on the 2d of October thereafter, so that it is impossible that it could have been published for four weeks before the last-named date. Cruzen v. Stephens, 123 Mo. 337, 27 S. W. 557, is another case relied upon by defendants as supporting their contention. In that case it was held that the insertion of an order of publication in a weekly newspaper "for four weeks," namely, on March 7, 14, 21, and 28, 1889, was a compliance with a statute requiring four weeks' publication, and the case of Haywood v. Russell, supra, is cited with approval, although the facts in the two cases are as widely different as they are between the Haywood Case and the case in hand. These are the Missouri decisions relied upon by defendants as supporting their position.

Now, as to the decisions which sustain our former ruling upon this question: In Valle v. Fleming, 19 Mo. 455, it was ruled that an administrator's sale of land is void, when it appears affirmatively that the publication of notice required by statute previous to the order, could not have been made. That case was followed and the same rule announced in Agan v....