Richardson v. Schuyler County Agricultural & Mechanical Ass'n

GANTT, P. J. This is an action for the assignment' of dower. The petition is in the usual form, and the answer is a general denial. Plaintiff is the widow of Manuel Richardson, who died June 17, 1888. During the marriage of plaintiff and said [410] Manuel Richardson he was seized in fee of the west half of the northwest quarter of the northeast quarter of section 13, and the northeast quarter of the northeast quarter of section 14 in township 66, range 15, in Schuyler county, Missouri. The action was commenced in Schuyler county March 31, 189?. On May 6, 1893, a change of venue was awarded to Scotland county, and the cause was tried in Scotland Circuit Court on 18th day of August, 1895, before a jury. The sole and only issue tried, was whether plaintiff was entitled to dower in the said lands. Defendant asserted title under a power of attorney alleged to have been executed by Manuel Richardson and plaintiff, as his wife, under which a deed was made conveying said lands in the lifetime of said Richardson. Plaintiff maintained she never signed or acknowledged said power of attorney, and it was over her execution or non-execution of said instrument that the contest was waged. The jury found for plaintiff and assessed her damages at $79.58. Whereupon at the same term defendant filed its motion for new trial, which said motion was at the said August term, 1895, overruled. No exceptions were saved as to any alleged errors committed during said trial and no bill of exceptions filed, or leave taken to file the same after the term. Commissioners were appointed to admeasure plaintiff’s dower and at the February term, 1897, filed their report which was 'approved without objection or exception and thereupon final judgment was entered assigning plaintiff her dower in conformity with said report. A. second motion for new trial was filed February 17, 1897, after the final judgment. This motion was also overruled May 31, 1897, to which defendant excepted. A motion in arrest was filed on same day and overruled and defendant excepted. The motion for new trial is based on the following grounds: [411] 1st. Because the verdict is against the evidence presented at the trial. 2d. Because the verdict is against the weight of the evidence. 3d. The verdict is against the law as declared in the instructions of the court. 4th. Because the court erred in refusing instructions ashed by defendant. 5th. Because the court erred in giving instructions asked by plaintiff. 6th. Because the court committed error in instructions given to the jury of its own motion. 1th. Because the damages assessed in this cause are excessive and unreasonable. 8th. Because the Hon. Ben E. Turner, the judge before whom this cause was tried has, since the trial, died. 9th. Because the court at the trial of this ease excluded legal and competent evidence offered by defendant. 10th. Because the count admitted improper, illegal and incompetent evidence at the instance of and on behalf of plaintiff against the objections of defendant. I. It will be observed that the motion for new trial is confined with one exception to errors alleged to have been committed at the August term, 1895. As already said in the statement of the case, no exceptions to the alleged erroneous rulings were taken at said August term, 1895, and no bill of exceptions filed, but defendant endeavored at the February term, 1891, to preserve its exceptions to the previous action of the court at the August term, 1895. It is entirely clear that it could not do so. By failing to save its exceptions at the August term, 1895, it waived all the alleged errors which occurred at said term. [State v. Ware, 69 Mo. 332; Henze v. Railroad, 71 Mo. 642.] To preserve exceptions at the interlocutory trial it is necessary to file a bill of exceptions at [412] that tom. [St. Louis v. Boyce, 130 Mo. 572.] Tbe apparent exception to this rule, which has obtained for ¿many years in this State is this, that exceptions taken on the trial of a cause may be preserved in the bill filed at the term at which a motion for new trial is overruled, though at a subsequent term of court; provided the motion for new trial is filed at the same term the exceptions are taken and remains undisposed of. Such was the doctrine announced in Riddlesbarger v. McDaniel, 38 Mo. 138; Gray v. Parker, 38 Mo. 160 and Henze v. Railroad, 71 Mo. loc. cit. 644. But it will be noted that in the latter .ease it was pointed out that it was only in cases in which the exceptions were taken and the motion for new trial filed at the same term, that the motion for new trial if continued had the effect of keeping the exceptions in the breast of the court until decided. It follows that defendant’s failure to except to the instructions and the evidence and its failure to preserve the same at the August term was a waiver thereof, and his motion filed at a subsequent term could not resuscitate the same, and make them available on this appeal. II. The only remaining ground for new trial is that Judge Ben E. Turner had died before the report of the commissioners and that this of itself entitled it to a new trial. We think this a non-sequitur. Had Judge Turner lived, he could not have considered the exceptions of the August term, 1895, at the February term, 1897, in the absence of a bill of exceptions properly taken and made a part of the record. On the other hand had the exceptions been preserved Judge Roy could have considered them under our present statute just as well as Judge Turner. [State ex rel. v. Perkins, 139 Mo. 106.] Judge Turner’s death, then, furnished no ground for new trial, as to the matters finally disposed of by him. No objections or exceptions were made to the action of the court or the commissioners at the February term, 1897, and the motions [413] for new trial filed at said term did not relate to the trial in August, 1897. Ye are cited by tbe learned counsel to a class of cases in which it is held that no appeal would lie from the interlocutory judgment that a widow be endowed or from the order overruling exceptions to the commissioners’ report and .approving the same, but would only lie after the assessment of damages; that until then no final judgment had been rendered. [Rannels v. Washington University, 96 Mo. 230.] This is true, but taking and preserving exceptions is one thing and an appeal, is another. Except in the special cases prescribed in Ihe Act of April 18, 1891 (Laws 1891, p. 70), an appeal does not lie until after a final judgment, but that does not affect the statute which requires all exceptions to be filed during the term at which they are taken or within such extension as may be granted. [Sec. 2168, R. S. 1889.] As no exceptions were saved to the admission or exclusion of evidence, or the giving or refusing of instructions at the August term, 1895, we are precluded from a consideration of those questions raised in the brief. There being no error in the record proper, the judgment is affirmed. Sherwood and Burgess, JJ., concur. Footnotes [1] NoTE.-The trial was begun before Judge Ben E. Turner, who rendered the interlocutory decree and who was then succeeded by Judge R. F. Roy, who rendered the final judgment.