Maplegreen Realty Co. v. Mississippi Valley Trust Co.

141 S.W. 625, 237 Mo. 365, 1911 Mo. LEXIS 266

• Court: Supreme Court of Missouri
• Decided: November 27, 1911
• Status: Published

Opinions

LAMM, J.

This is a cross-appeal by plaintiff in a ease between the same parties just decided and reported at page 350 of this report. Quod vide. The pleadings, issues and incidents are the same, with this exception: When the referee’s report eame in accompanied by the evidence his finding was in favor of defendant on sundry items, viz., on the Williamson lot purchase, $360.; on Dwyer’s, $490; on Hobb’s, $300; on Ward’s, $390; on Zorn’s, $221; on Morris’, $300; on Ketterer’s, $55; on Zorn’s, $62; on Anderson’s, $100; on McDonald’s, $294; on Berry’s, $270; on Weigman's, $350; aggregating between three and four thousand dollars.

Plaintiff filed forty-four exceptions to the referee’s report and findings, — among others, the finding pertaining to the lot sales just mentioned. Its exceptions were overruled and it saved an exception to that action of the chancellor. The report of the referee was then confirmed and judgment followed accordingly.

Thereat plaintiff filed its motion for a new trial, wherein it called attention to its claim of error in overruling its exceptions to the referee’s report. Its motion for a new trial was overruled and on due steps this appeal followed.

Its bill of exceptions contained the following recital: “The evidence taken before the referee is omitted, because the plaintiff, for the purposes of this appeal, accepts the referee’s finding as to the facts.”

The report of the referee is sufficiently indicated in the opinion in the former case. In that ease we ruled we would not consider the merits of a case in equity where the testimony is not brought up. There is no testimony here and that' fact precludes our rehearing of the merits. [Maplegreen Realty Co. v. Mississippi Valley Trust Co., ante, p. 350; Pitts v. Pitts, 201 Mo. 356; Guinan v. Donnell, 201 Mo. 173; Patterson v. Patterson, 200 Mo. 335; State ex rel. v. Jarrott, 183 Mo. 204; Rule 7 of this court.]

There are no material questions raised by plaintiff’s exceptions to the referee’s report which do not turn on the probative force of the testimony. The findings or conclusions of fact by the referee are here, but the testimony, as said, upon which he based those findings is not. Therefore there is nothing here— but a duty to affirm. That duty we perform by ordering affirmance. Let the judgment be affirmed on appellant’s appeal.

Coming into Banc, the divisional opinion of Lamm, J., is adopted on a rehearing therein.

All concur, except Valliant, C. J., who dissents in a separate opinion filed, in which Woodson, J., concurs in result.