Clarkson v. Stanchfield

Lewis, Judge, delivered the opinion of the court. This was an action of ejectment against four defendants. When the cause was reached for trial, the plaintiff dismissed as to one defendant. The other three having answered, but not further appearing, the cause was submitted to the court without a jury, whereupon the finding and judgment were for the plaintiff, for recovery of possession and $1,650 damages, with $10 for monthly value until surrender of the premises. No motion for a new trial was filed, nor does any bill of exceptions appear in the record. The transcript before us presents a motion filed by defendants at the next succeeding term, to set aside the judgment, together with sundry affidavits in its support. The motion would appear to have been overruled. But none of these matters were preserved in a bill of exceptions. By a rule well established and generally known, we are therefore precluded from bestowing any attention upon them. (Brown vs. Foote, 55 Mo., 178.) The counsel for plaintiffs in error, urge that there are sufficient grounds for reversal appearing in the record proper. One is, that, while the petition demands only possession of the premises, the judgment declares that the plaintiff is [575] “owner of” and entitled to possession of them — thus giving him more than he has asked for. There is nothing in this objection. The whole spirit and purpose of the action of ejectment is to try title and, by the very terms of the statute, the plaintiff could only recover against a defendant “'not having abetter title” than his own. The reference to ownership in the judgment, introduces no new element of recovery and, if objectionable at all, it can only be as surplusage. It is also insisted that the. defendants in their answers, “disclaimed” possession or title as to a large part of the land sued for, and therefore the judgment is erroneous in not excepting so much out of the recovery. This is equivalent to saying that the plaintiff could not recover upon his petition and proofs, but only on the defendant’s answer without proofs. Possession by the defendant is one of the facts which a plaintiff in ejectment-must allege and prove. The defendants in this ease denied that fact as to all the land except 20 acres. The finding of the court, on the pleadings and “the evidence introduced,” was against them on that issue, and there was the end of it. We find no error in the record proper, and as no other matter is properly before us, the judgment must be affirmed. The other judges concur.