Thompson v. Ruddick

LAMM, J. In 1836, William H. Thompson entered the southeast quarter of the southeast quarter and the southwest quarter of the northeast quarter of section 12, township 63, range 6 in Clark county, Missouri, and died in the 50’s or 60’s at Palmyra. The land (we infer) was in the Mississippi river bottom and shown to be subject to overflow. Thompson never took possession. On December 15, 1836, he, by two several deeds, conveyed a one-eighth interest each to Erastus Palmer and to William Brown. On April 27, 1837, he deeded a one-eighth interest to Stephen Negus and John Barclay. [563] A quarter of a century or more ago one William Ruddick took possession under color of title, built dykes, and levees, dug’ ditches, cut the willows, subdued the land and (struggling with recurring- floods) farmed it, paid the taxes for twenty-four years and died leaving a widow and children. Ruddick’s title originated in tax deeds, and in a quit-claim deed from the executors of the will of said William Brown. Finally, plaintiffs, as heirs of Thompson, sued defendants as the widow and heirs of said Ruddick in partition. Such things developed in that case that plaintiffs were forced to bring this ejectment against the widow and heirs of Ruddick and their tenants in possession to try title and recover possession of a five-eighths interest, as a step, towards partition. Plaintiffs’ theory at the trial was that while defendants and their ancestor were in possession for the statutory period of limitations, yet such possession was merely that of one out of several tenants in common, i. e., it was held for all, therefore, the Statute of Limitations did not run in their favor to create title or as a bar. And such is their position on appeal. The theory of defendants'was the opposite of that. Ás a bar to ejectment and as creating title in themselves, they pleaded by way of answer that said Ruddick and his tenants and, since his death, these defendants and their tenants have held-open, notorious, continuous and exclusive adverse possession under claim of ownership as against the whole world for more than ten years. And such is now their contention. At a jury trial in the Clark Circuit Court the issues were found for defendants, and plaintiffs appealed. In this court, defendants (among other points) in-1 sist the abstract is imperfect and does not comply with our rules as interpreted by our decisions. An examination of it discloses this is so. Plaintiffs have brought [564] here a bundle of things, tied together without earmark or explanation, consisting of entries, orders, deeds, testimony, instructions, exceptions, etc., all so mingled and arranged that it is out of the question to tell what is record proper, and what is matter of exceptions. We have often and often held that there is a significant distinction in substance between matter of exception' and matter of record proper and that such distinction should be preserved in making abstracts. We have dismissed cases because appellants have relied on narrations in the bill of exceptions relating to matter that pertains solely to the record proper, and vice versa. It has been held in effect that in some reasonable way the abstract should indicate by its own internal arrangement what is record proper and what is matter abstracted from the bill of exceptions— where the one ends and the other begins. [Stark v. Zehnder, 204 Mo. l. c. 448, et seq.; see also, Harding v. Bedoll, 202. Mo. l. c. 630; Pennowfsky v. Coerver, 205 Mo. l. c. 137.] The moral is that there is a place for everything and everything should be in its place. This, in order" that we may see that the matter brought here is authenticated as coming from a legitimate source. Of what avail, indeed, would be our rulings requiring record proper to be abstracted as such, and the bill of exceptions to be abstracted as such if an appellant may be allowed to produce here his entire record so confused that record entry and exceptions are undistinguishably woven together and so that no court can tell from what receptacle the one or the other came? If we, without furnished chart, must sort out and divide record entries relating to the filing and the overruling of motions, the allowance of an appeal, the settling and filing of the bill of exceptions, etc., from those matters which must alone appear in a bill of excep [565] tious, our action might he wide of the mark as mere guess work. Therefore, in some way the abstract should show that the rulings of the court and the exceptions thereon were preserved in a bill of exceptions. Defendants insist that the appeal should be dismissed, but this ought not to be done because an appeal- lies without a hill of exceptions, provided appellants desire to take that course and rest their case on the record proper. Accordingly, we have examined the pleadings and judgment. We find the latter is responsive to and supported by the former. But, being unable to tell with certainty from the abstract what exceptions were preserved in a bill of exceptions, we are obliged to treat the case as if there was none. It must be obvious that there should be one rule of appellate practice for all, and that rule enforced against all. Otherwise, those who obey the rules gain nothing by their obedience and those who disobey them lose nothing by their disobedience. The premises considered, the judgment should be affirmed. It is so ordered. All concur, except Valliant, P. J absent.