Rodgers v. Kallmeyer

REYBURN, J. The petition filed in this proceeding was unavoidably lengthy, but summarized, the action was entitled to construe and reform the will of Thomas J. Powell, deceased, and was instituted by appellants, Jacob R. Rodgers, Nancy V., his wife, James H. Powell and Mary Fanny Devault against the administrators with an annexed estate of Thomas J. Powell, deceased, and the legatees and devisees under such will; the plaintiffs Nancy V. Rodgers, Mary Fanny Devault and James H. Powell being children of the testator. The object of the action and prayer of the,complainant was to have plaintiff, James H. Powell, declared a pretermitted heir, and also to have the will construed or reformed so as to relieve his coplaintiff Nancy Y. Rodgers from payment of interest upon a note described, to conform to the alleged intention of the testator. Defendants filed a joint demurrer to the petition on the ground that it failed to state facts sufficient to constitute a cause of action against defendants. Upon submission, the court sustained the demurrer only to those portions of the petition relating to the relief sought by Nancy Y. Rodgers, [139] and on the same day the court further entered an order as follows: “Now at this day this cause coming on to be heard, the plaintiffs appear by their attorney, John M. Barker, and the defendants appear by their attorneys, E. Rosenberger & Son, and the cause being called for trial, both parties announcing themselves ready for trial, whereupon said cause is submitted to the court upon the-pleadings in the cause and after listening to the argument of the attorneys the court Construes the will of Thomas J. Powell as to the ninth item of said will to be: " "“The court considering the will as to the ninth item of said will finds that James H. Powell, one of the chil-' dren of the testator, Thomas J. Powell, is not provided for therein, and that the court further finds, that it was the intention of the testator that all of his thirteen children share alike, and subject to whatever advancements he had made to them, and that it was the intention of the said testator that each one of his thirteen children, including the said James H. Powell, should take a one-thirteenth part of the residuary assets of said estate subject to whatever advancements he had made to them and that through the neglect' or inadvertence of the scrivener who drew said will the said Thomas J. Powell was inadvertently omitted from sharing in the residuary assets. “And the court further finds that the said James H. Powell-is a pretermitted heir as to the one-thirteenth part of .the residuary assets of the estate-of Thomas J. Powell, deceased, and the plaintiff consents to the construction of the court in open court as to James H. Powell, only. “It is further adjudged that the plaintiffs have and recover of the defendants their costs in this behalf expended and that execution issue therefor.” Plaintiffs, Jacob R. and Nancy V. Rodgers, then moved in arrest, and also filed motion to set aside the judgment rendered upon the demurrer, and proceed [140] with, the trial upon the petition and on the merits of the case. No action by the court upon these motions appears in the abstract of record prepared, nor does it exhibit any exceptions saved by appellants. The judgment herein merely sustaining the demurrer to a portion of the petition was not such judgment as an appeal would lie from under the provisions of the statute. R. S. 1899, sec. 806. No appeal will lie from a judgment overruling or sustaining a demurrer. City of Plattsburg v. Allen, 84 Mo: App. 432. It follows that this court is devoid of jurisdiction of the cause and the appeal is accordingly dismissed. Bland, P. J., and Goode, J., concur.