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made a so-called final settlement of Claudia did not pay to the said Claudia W. Harris W. Harrisestate May 9, 1893; all three es- the said sum of $388.98, or any part thereof, tates being settled at the same time and in or any other amount or moneys. I further the same court. I find that Sarah W. Harris find that said ward was not informed as to in ber so-called final settlement on May 9, her estate and its conditions, and signed the 1893, as guardian and curator of Claudia W. receipt because asked to do so by her mother Harris, only charges herself with the fol- and her lawyer, and that she did not waive lowing items, to wit: To proceeds from life any of her statutory rights. I further find insurance, $666.67; and to $200 as her inter- that said probate court of St. Charles counest in the sale and proceeds of said drug ty, Missouri, on the 31st day of May, 1901, store, which she sold for $600; and to $129.66 after hearing the motion of Claudia W. May, as ber part of the estate of her brother, formerly Claudia Harris, late a minor, and Warren Harris, deceased. I further find she which I find she filed in said court, asking credited herself in said settlement with the said court to set aside and vacate the order sum of $7.35 costs and $600 for six years' of final settlement and discharge of her board, clothing, tuition, and maintenance, guardian, Sarah W. May, formerly Sarah W. storing a balance due said Claudia May of Harris, and compel her to make a full and SOS. I further find that the said Sarah complete settlement of said estate, and after W. Harris kept one-third of the proceeds of being fully advised in and concerning said the sale of said drug store as her own, matter, made an order and judgment of recbereas I find and conclude as a matter of ord on said day sustaining said motion, and las she was not entitled to any part thereof, ordered, adjudged, and decreed that the orand had no legal interest therein. I further der of final settlement and discharge of said find and conclude that on May 9, 1893, and guardian made by the court on the 9th day being the time that Sarah W. Harris made of May, 1893, be vacated and set aside. I ber so-called final settlement of Claudia W. further find that said Sarah W. May did not Harris' estate, she should have charged her- serve any notice of her final settlement upon self with and accounted for the following her ward Claudia May, nor of her intention Items:

to make such settlement or ask for a disTo one-tbird life insurance..

$ 666 67 charge, and that said ward did not waive Te interest thereon for 5 years, 5 months, 5 days at 7 per cent.

274 30

her right to such notice. I therefore find and 10 oge-balt proceeds sale of drug store.. 300 00 conclude that said so-called final settlement To izterest thereon for 4 years, 5 months, and 5 days at 6 per cent..

80 80

and order of discharge of said guardian and To 210unt inherited from Warren Harris'

curator, Sarah W. May, formerly Sarah W. 357 21

Harris, was and is vacated and set aside, Total ......

$1,678 98 and that such settlement was not and is not "I further find she took credits as follows: a final settlement. By probate costs...

7 35

"I further find as aforesaid that the 37 Er years' board, clothing, tuition, and

amount due Claudia W. Harris, now Claudia 600 00

W. May, on May 9, 1893, was $1,071.63. I Total

$ 607 35

further find that she is entitled to interest Balance due Claudia W. Harris, $1,071.63. -Which said amount of $1,071.63 I find and

thereon at the rate of eight per cent. from

that date to August 13, 1896–3 years, 3 conclude the said Sarah W. Harris owed her

months, and 4 days—which is $279.50. I fursaid ward Claudia W. Harris on May 9, 1893,

ther find that on the day of July, 1896, instead of the amount she claimed to owe of

Sarah W. Harris and Claudia Harris sold the $9.98. I further find and conclude that these

farm herein mentioned in St. Charles counitems making the difference in both the es

ty, Missouri, for $1,205.70, and that the en

tire amount was paid to Sarah W. May, fortates of Claudia and Warren Harris, minors,

merly Sarah W. Harris. I find and conclude were not included in nor embodied in the

that Sarah W. Harris was entitled to onesaid settlements of Sarah W. Harris, curator, 191 were not passed upon by the court in its

fourth of the proceeds from the sale of said

farm and Claudia Harris to three-fourths of actions in said estates, and were not adjudi. eated by said court. I further find that

the proceeds of the sale of said land. I find

that the amount due Claudia Harris from the Claudia W. Harris at the time of said so

sale of said land is $904.27; making the called final settlement was of age, and executed to the said Sarah W. Harris a receipt

total amount due and unpaid Claudia Harris,

now Claudia May, from Sarah W. Harris, for $388.98 in full payment and satisfaction ei her interest in the estates of James D.

now Sarah W. May, on August 13, 1896, as

Harris and Warren Harris, and in full set-
terdent of her accounts as guardian and

To amount due Claudia Harris on final set-
tlement of her estate May 9, 1893..

$1,071 63 curator of Claudia W. Harris. I further find

To interest on said amount from that date that the said Sarab W. Harris filed said re

to August 13, 1896, at 8 per cent..

279 50

To three-fourths proceeds of sale of farm... 904 27 ceipt in the probate court of St. Charles senty, Missouri, and that the court made

Total amount due......

$2,255 40 an order of record on that day, to wit, May "I further find from the evidence that the 9. 1893, discbarging said curator. I further real estate described in plaintiff's petition as ind that the said curator, Sarah W. Harris, being situated in the county of Pike and

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state of Missouri, to wit, all of lot 25 in block the purchase of the said Louisiana property, No. 107 in Baker's Claim Addition to the city in the sum of $55.40, being the difference of Louisiana, except five feet off west side of between the amount then due said Claudia said lot, reserved for alley purposes, was pur- W. May of $2,255.40 and the $2,200 used in chased by plaintiff for the sum of $2,200, the purchase of said Louisiana property, which said sum was paid therefor on the which is the said sum of $55.40, and should 13th day of August, 1896, and consisted of pay interest thereon at the rate of 8 per defendant Claudia May's share of the pro- cent. ceeds of the sale of said farm, and the bal- "I find from the nature and amount of the ance of which purchase money of said property to be divided that partition in kind Louisiana property consisted of trust funds of the same cannot be made without great collected by and held in the hands of the prejudice to the owners thereof. I there plaintiff, Sarah W. May, as guardian and fore recommend that partition be had herein, curator of defendant Claudia May; all of and that lot No. 1 in block No. 20 in the Rail. which purchase money of the said Louisiana road Addition to the town of Wentzville, St. property was money due and belonging to Charles county, Missouri, be sold according said Claudia May from plaintiff, and were to law to the highest bidder for cash, and funds of said Claudia W. May held as trust that the proceeds of said sale be partitioned funds by said plaintiff, and which went into and divided between the parties herein acand paid for said Louisiana property, the cording to their respective interests as hereownership of said purchase money being in in found, and that plaintiff pay to Claudia said Claudia W. May.

I further W. May the sum of $55.40 and interest therefind that Sarah W. May has a fee-simple on at the rate of 8 per cent. from August title to an undivided one-half interest, so far 13, 1896, out of her interests in the proas the record title is concerned, in the land ceeds of said sale, and that her interest in described in her petition as located in Louisi- the proceeds of said sale be charged thereana, Pike county, Missouri, but further find with. I further recommend that title in fee and conclude that she holds said title and in- to all of lot No. 25 in block 107 in Baker's terest in trust, however, for the benefit of Claim Addition to the city of Louisiana, Pike Claudia W. May.

county, Missouri, except five feet off the west. "I find and conclude as a matter of law side of said lot, reserved for alley purposes, that Sarah W. May is entitled to and owns a be adjudged and decreed in Claudia W. May, homestead interest in lot No. 1, in block No. and that plaintiff be divested of any and all 20, in the Railroad Addition to the town of title therein." Wentzville, in St. Charles county, Missouri, Upon the coming in of the report plaintiff and described in plaintiff's petition and is filed objections thereto, which, having been also entitled to and owns an undivided one- heard, were overruled, the report in all things fourth interest in fee simple in and to the approved, and the following decree entered: remainder interest in said lot. I find and “It is therefore considered, ordered, adconclude as a matter of law that Claudia W. judged, and decreed by the court that plainMay is entitled to and owns an undivided tiff, Sarah W. May, formerly Sarah W. Har.. three-fourths interest in fee simple in and to ris, be, and she is hereby, divested of any lot No. 1, in block 20, in the Railroad Addi- right, title, or interest, whether legal, equition to the town of Wentzville, St. Charles table, certain, or contingent, or present or county, Missouri, subject to the homestead in reversion or in remainder, in and to lot interest of Sarah W. May. I find and con- No. twenty-five (25) in block No. one hunclude as a matter of law that Claudia W. dred and seven (107) in Baker's Claim AddiMay is also entitled to and owns all of lot tion to the city of Louisiana, Missouri, exNo. 25, in block No. 107, in Baker's Claim cept five (5) feet off of the west side of said. Addition to the city of Louisiana, Pike coun- lot, reserved for alley purposes, and that the ty, Missouri, except five feet off of the west absolute fee-simple title to said premises be, side of said lot reserved for alley purposes. and the same is hereby, adjudged and deI find and conclude that she is the owner creed to be in defendant Claudia May; and in fee by purchase of an undivided one-half the prayer of plaintiff for partition of the interest in the said property last above de same is hereby denied. It is further considscribed, and is entitled to and the owner of ered, ordered, and adjudged by the court the other half interest in fee, the record that plaintiff, Sarah W. May, be, and she is title to which is in Sarah W. May, by rea- hereby, entitled to and is the owner of a son of the fact that said Sarah W. May pur- homestead interest in and to lot No. 1 in chased said one-half interest with the funds block No. 20 in the Railroad Addition to the of Claudia May as hereinbefore found, and town of Wentzville, St. Charles county, Misplaced title thereto in her own name. I souri, and that, in addition thereto, she be, further find and conclude tha she took and and is hereby, entitled to and is the owner now holds the same in trust for the benefit of of an undivided one fourth interest in fee the said Claudia W. May. I further find simple in and to said premises. It is furand conclude that Sarah W. May is indebted ther considered, ordered, and adjudged by to Claudia W. May on August 13, 1896, over the court that defendant Claudia May be. and above the trust funds which she used in and she is hereby, entitled to and is the own.

er of an undivided three-fourths interest in decree is asked for. This contention is based fee simple in and to said lot No. 1, in block upon the theory that such a settlement was Sa. 30 in the Railroad Addition to the town a final settlement, as it purported to be, and Weatzville, St. Charles county, Missouri, if it was so in fact then the trial court comsubject, however, to the homestead interest mitted error in the admission of evidence bereinbefore adjudged in favor of plaintiff, dehors the settlement, and the decree is obSarah W. May; and the court decrees par- viously erroneous, for no principle is better toon of said premises in accordance with settled in this state than that final settlethe rights of the parties as hereinbefore de- ments of guardians, executors, and adminmined. It is further considered, ordered, istrators stand upon the same footing as and adjudged by the court that said lot No. other judgments of courts of competent ju1 in block No. 20 in the Railroad Addition risdiction, and are conclusive as to all matto the town of Wentzville, St. Charles coun- ters the proper subject of account included ty. Missouri, is not susceptible of division in in such settlements and involved in the final Fird among the parties in interest without settlement. State ex rel. v. Gray, 106 Mo. qeat injury to the owners thereof; and the 526, 17 S. W. 500; Smith v. Hauger, 150 Mo. wintment of commissioners to divide said 437, 51 S. W. 1052; Patterson v. Booth, 103 real estate in kind between plaintiff, Sarah Mo. 402, 15 S. W. 543; Garton v. Botts, 73 W. May, and defendant Claudia May, and to Mo. 274. But, in order that a settlement Teport the advisability and practicability of shall have such conclusive force and effect, 4 partition in kind of said real estate be- it must be a final settlement, made in actween them, is hereby dispensed with. It is cordance with the requirements of the stattherefore considered, ordered, and adjudged ute in force at the time settlement is made. by the court that so much of said real estate In this instance that statute required the above described as is situated in St. Charles plaintiff as guardian and curator of her county, Missouri, to wit, lot No. 1 in block daughter, for the purpose of making such a 30 in the Railroad Addition to the town of settlement, to make a just and true exhibit Tentzville, be sold by the sheriff of said of the account between herself and her St Charles county, for cash in hand, on some ward, and file the same in the court having diy during the regular March term, 1903, of jurisdiction thereof, and cause a copy of te circuit court of said St. Charles county, such exhibit, together with a written notice a accordance with the laws governing such stating the day on which and the court in sa'es of real estate in partition, and that said which she would make such settlement to be steriff make full, true, and complete report delivered to her ward at least four weeks of the sale of said real estate and of his acts next before the first day of the term of the under this order to this court at its next court at which settlement was according to polar term. It is further considered, order- the terms of such notice to be made, and , and adjudged by the court that upon the

only upon satisfactory proof of the delivery sle of said real estate aforesaid the home

of a copy of such exhibit and written notice tead interest hereinbefore adjudged in fa- of such settlement to her ward was the court Tor of plaintiff, Sarah W. May, be commuted

authorized to make a final settlement of her to its present cash value. It is further con

account with her ward. Rev. St. 1889, 8 5329. sidered, ordered, and adjudged by the court This statute was not complied with in makthat defendant Claudia May have and recor

ing the settlement in question, as is apparent from the plaintiff, Sarah W. May, the

on the face of the record, and affirmatively sm of fifty-five and forty-hundredths dol

shown by the evidence, The exhibit was 27 (5.10), together with interest thereon

not filed and the notice was not given as refrom August 13, 1896, at the rate of eight quired by the statute; nor was there any 5 per cent, per annum, and that the interest

waiver, if such a thing could be, by the apsaid Sarah W. May in and to said prem- pearance of the ward to the settlement. as aforesaid, or in and to the proceeds of Hence it was not a final settlement, and cantie sale herein ordered to be made of the not have the force and effect of one. Mead $2De, is hereby charged with the lien of this

v. Bakewell, 8 Mo. App. 549; Folger v. Hei1d2ment for the above amount."

del, 60 Mo, 284; State, to Use, v. Hoster et From this decree the plaintiff appeals, her al., 61 Mo. 544; Berkshire v. Hover, 83 Mo. Tunel contending here, as they did through App. 435. The last case was decided under te whole trial before the referee and the the statute in force when this settlement was crt below, that in determining the amount made, and whilst it is therein noted that pute moneys that came into the hands of plain- the letter of that statute as a whole is not

as guardian and curator of her daughter, identical with the statute in force under id which, with the proceeds of her interest which the previous decisions were made, it * the farm which she inherited from her is aptly remarked that the spirit is the same, !itter and brother, went into and constituted and the construction is a fair and whole**e piirchase price of the Louisiana property, some one. As a settlement without notice, 'he referee and the court were concluded by it could have no other or greater force than *re settlements made by her as such guard- an annual settlement, and as such would be ao and curator. And this is substantially merely prima facie evidence of the facts De only ground upon which a reversal of the therein contained-evidence which might be

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rebutted and overcome, as was overwhelm- fendants in the condemnation of land, one ingly done in this case, by competent and of them appeals. Affirmed. credible evidence. Plaintiff's contention cannot be maintain

Sears Lehmann and Boyle, Priest & Leh

mann, for appellant. Chas. W. Bates and ed, and, but for the last paragraph of the decree, in which a judgment for $55.40 is

O. R. Skinker, for respondent. rendered against the plaintiff and charged against her homestead, the decree would be VALLIANT, J. This is a proceeding to affirmed. We do not perceive, however, up- open a street, condemning land to be taken on what principle the plaintiff's homestead for that purpose and assessing benefits. The can be charged with an indebtedness to her St. Louis Fair Association is one of the propward in an action in partition. That indebt- erty owners whose land is taken and is the edness has nothing to do with the res of the appellant. The petition was filed April 24, suit. It was only with the ward's money 1897. Commissioners were appointed, who that went into the land to be partitioned that filed their report October 24, 1899. Time the chancellor had to do in this action. was given to report to municipal assembly, Hence for that error in the decree the same and exceptions to the commissioners' report will be reversed, and the cause remanded were filed. On April 30, 1900, during the to the Louisiana court of common pleas, with April term, it is said in appellant's abstract directions to that court to strike that para- that the city counselor filed a statement graph from the decree, and proceed with the showing that the municipal assembly had case to final judgment. All concur, except | disapproved of the commissioners' report, MARSHALL, J., not sitting.

and that on the same day the court made an order setting aside the report and appointing a new set of commissioners to make a

new assessment of damages and benefits. CITY OF ST. LOUIS V. LAWTON et al. The order contains no finding or recital of (Supreme Court of Missouri, Division No. 1. facts as its base, but simply sets aside the June 15, 1905.)

report and appoints a new commission. At 1. BILL OF EXCEPTIONS-TIME FOR FILING.

the October term, 1900, the second set of Where no bill of exceptions was filed dur- commissioners filed their report, awarding ing the term, or within an extension of time

appellant $1 damages for the land taken, and then granted, the exceptant could not incorporate the proceedings in a bill filed at a sub

assessed against it amounts aggregating $4,sequent term.

261.63, for benefits, and against the city as [Ed. Note.—For cases in point, see vol. 21, for benefit to the general public $100, to Cent. Dig. Exceptions, Bill of, $$ 49-51.) which report appellant filed exceptions: 2. NEW TRIAL-MOTION-SCOPE-REVIEW. First, that the damages assessed in appelWhere, at one term, an order was made

lant's favor were inadequate; second, the setting aside a report of commissioners on damages in condemnation proceedings and appoint

benefit district should have been extended ing a new commission to inquire into the dam- further; third, the benefits assessed against age, and no exception was taken to such action, the city were too small; fourth, that the on the report of the new commission at a sub

failure of the municipal assembly to approve sequent term, the party dissatisfied therewith could not acquire a right to have the validity

the report of the former commissioners opof the appointment of the commission reviewed erated as a withdrawal of the proceedings, by making the motion for new trial include the

and therefore this report is without warrant proceedings of the prior term.


on evidence at the June term, 1901, when the Under St. Louis City Charter, art. 6, 8 7 court sustained the exceptions to the extent et seq., providing that, on a petition to condemn of reducing the aggregate assessment of the lands and appointment of a commission to as

benefits against the appellant $1,200, and sess damages, opportunity shall be given to report to the municipal assembly "for its infor- adding that sum to the assessment against mation and approval,” the disapproval of the the city, and, after so modifying the report, report does not of itself operate as a dismissal approved it, and rendered final judgment of of the proceedings.

condemnation of appellant's property accord4. SAME-DAMAGES--TRIAL BY JURY. Under St. Louis City Charter, art. 6, & 7,

ingly. Appellant in due time filed a motion providing that, on exceptions to the report of

for a new trial, assigning three grounds: commissioners assessing damages in proceedings First, error in modifying report and entering to condemn land, the court may make such or

judgment thereon; second, under the evider as justice may require, and may order a new appraisement, an order making changes in the

dence the exceptions should have been susbenefit assessment was not an infringement on tained and the report set aside; third, adthe right, given by Const. art. 2, $ 21, to have mitting illegal evidence for the plaintiff and the damages assessed by a jury or commission

excluding legal evidence for the exceptor. of freeholders.

The motion was overruled, and leave to file Appeal from St. Louis Circuit Court; Sel. bill of exceptions on or before October 7th den P. Spencer, Judge.

next was granted, which bill was filed in due Proceedings by the city of St. Louis against time. On the trial the evidence for the exJoseph Lawton and others. From a judg. | ceptor tended to show that the amount of ment assessing damages and benefits to de- damages assessed was inadequate, and con

tra. for the plaintiff, that the land proposed , back and object. The point relied on is not to be embraced in the street had in fact al- preserved in this bill of exceptions. What ready been a public road many years.

is above said relates, of course, to matters 1. The first and main proposition of ap- in pais. If the alleged infirmity is in the pellant is that the disapproval by the mu- face of the record, it needs no bill of excepLicipal assembly of the report of the first set tions to bring it up for review. Does it apof commissioners was in effect the end of pear in the face of the record proper that the suit. All that the court did thereafter the court committed error in setting aside the Fas outside of its jurisdiction. The learned first report and awarding a new appraisecounsel on both sides of this controversy are ment? It is argued for appellant that the agreed on the proposition that no action of court based its order on the action of the the trial court is reviewable on appeal, un- municipal assembly in refusing to approve less it was presented to the trial court in a the report. But that does not appear on the riotion for a new trial, or a motion in ar- face of the record proper. The order itself rest, or unless it appears on the face of the contains no finding or recital of fact, and all record proper. There was no motion in ar- reference in this bill of exceptions to what rest, but appellant insists that the point was occurred at the April term, 1900, is to be dispreserved in the motion for a new trial, and regarded. There is, therefore, nothing in the also that it is on the face of the record prop- record of which we can take notice that er. The only bill of exceptions we have is shows any action of the muncipal assembly that wbich covers the trial at the June term, in reference to the report of the first com1901. The order of the court setting aside mission. The record proper shows that exthe report of the first set of commissioners ceptions were filed to the report, and the and appointing a new commission was made charter provides in such cases (section 7, art. at the April term, 1900, and there was no bill 6) that the court shall hear the exceptions of exceptions filed at that term, and no exten- and make such order in the case was right sion of time asked or given to file one. The and justice may require, and may award a proceedings of the court at that term were new appraisement upon good cause shown." not excepted to. The bill of exceptions taken There was, therefore, express authority for at the June term, 1901, undertakes to go the court to do just what it did. beck to the April term, 1900, and brings into Perhaps, after what we have said, it is it the order made at that term, and says, “to unnecessary to consider what would have which action of the court this exceptor and been the effect of the refusal of the municidefendant, the St. Louis Fair Association, pal assembly to approve the first report, if then and there duly excepted." But when the second properly showed such refusal; the April term, 1900, closed, and no bill of but, lest our silence on that point might give exceptions was filed then, or within an ex- a wrong impression, we deem it proper to tersion of time then granted, its book was say that whilst the charter (section 9, art. sealed, and the party cannot incorporate into 6) requires that opportunity be given the a bill of exceptions covering the proceedings city counselor to report the matter to the of a subsequent term that which should have municipal assembly “for its information and been preserved in a timely term bill. There- approval," and that no action be taken on fore the recital in this bill that the party the report by the court until the municipal Excepted to the ruling of the court at the assembly has acted, it does not say what efformer term cannot be considered.

fect the disapproval of the report by the Appellant contends that this point is pre- municipal assembly shall have. The same serred in the record in this way: In the ex- section in that connection goes on to say ceptions filed to the report of the second com- that the city may dismiss or withdraw the mission, the fourth ground is that the failure proceedings on payment of costs, and when of the assembly to approve the report of the it does so it shall not begin the action again first commission operated as a withdrawal of for 10 years. That language contemplates the proceedings, and in the motion for a new motion by the city in court or before the trial at the June term, 1901, one of the clerk in vacation to dismiss the suit. ID gounds is that the exceptions should have fact, when a suit of any character is pend been sustained. But a motion for a new trial ing in court, it cannot be dismissed by the should be based on what occurred at the trial. action of a party outside and independent of It cannot go back to the proceedings and rul- the court or its officers. The code of proings of the court at a former term, and bring cedure provides how a suit may be dismissthem in to impeach the regularity of the pro- ed in term or in vacation Sections 639, ceedings on the trial under review. If par- 797. It may be that the action of the muties submit to a ruling without exception, nicipal assembly in refusing to approve a they will be presumed to have acquiesced in report would furnish a basis on which to it. If the proceedings under this second com- found a motion to dismiss (as to which we mission had been entirely satisfactory to ap- express no opinion); but the action itself sellant, it would not have desired to ques- does not dismiss the suit. The charter tion the authority of the court to appoint a might have given it that effect, if it had so De* commission. It cannot acquiesce until | provided; but it does not so provide. In the report comes in against it, and then go the next section (10) it is provided that when

88 S.W.-6

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