Dalton v. Mowry

47 Mo. 409

• Court: Supreme Court of Missouri
• Decided: March 15, 1871
• Status: Published

Opinion

Currier, Judge,

delivered the opinion of the court.

This is a suit for partition in which the appellant was joined as a party defendant. He answered, for substance admitting the allegations of the petition, but averred that he had made improvements upon a portion of the common property, for which, as he claimed, he ought to be considered and compensated in dividing up the estate. These allegations were replied to and traversed.

When the cause came on for trial the appellant failed to appear, and a decree for partition was rendered in accordance rvith the prayer of the petition. Subsequently the appellant moved to set aside the decree, founding the motion upon the facts detailed in an affidavit filed therewith. The motion was overruled, and the appellant excepted and brings the case here by appeal, the estate in the meanwhile having been divided and the report of the commissioners appointed in the case duly approved.

The affidavit upon which this motion was founded shows no such diligence that we can say the discretion of the Circuit Court was unsoundly exercised in overruling the motion. On the other hand, the action of the court seems to have been quite proper and befitting the case. No errors are shown in the record which would warrant a reversal, and the judgment will accordingly be affirmed.

The other judges concur.