Smith v. Royse , 165 Mo. 654 ( 1901 )

BRACE, P. J.

This is an action in ejectment instituted in the Carroll Circuit Court on October 2, 1897, in which the plaintiff sues to recover possession of the undivided one-fourth of the northeast quarter of the southeast quarter of section 2, township 52, range 25, in Carroll county, of the possession of which she alleges she was ousted by her co-tenant, the defendant Eoyse, on February 12, 1896. The answer was a general denial. The judgment was in favor of the plaintiff and for damages in the sum of $125, and for $2 per month the value of the monthly rents and profits, and the defendants appeal.

The case was tried before the court without a jury. The declarations of law made by the court at the close of the case are not excepted to or brought here, and no exception is taken to any action of the court on the trial. The only objections urged to the judgment on this appeal are that the evidence did not affirmatively show that the plaintiff was an heir at law of William Downey, who died seized of the land, and that the damages are excessive. All the evidence in the case is brought here and we are asked to review it, and upon it, we are asked to find against the circuit court upon these two points and reverse the judgment.

This is purely an action at law, in which we are not called upon to determine the weight of the evidence. The finding of the trial court is final upon that question. [State ex rel. v. County Court, 51 Mo. 522; Hamilton v. Boggess, 63 Mo. 233; Gaines v. Fender, 82 Mo. 497; State ex rel. Watson v. Harper, 83 Mo. 670; Mays v. Pryce, 95 Mo. 603; Bartlett v. Kauder, 97 Mo. 356; Hahn v. Catton, 136 Mo. 216; Sutter v. Raeder, 149 Mo. 297; Zimmerman v. Railway Co., 156 Mo. 561.]

Having looked into the abstract of the evidence brought here, and found that there was some evidence tending to prove facts upon which the judgment of the circuit court might have been properly predicated, with that branch of the case we have nothing further to do; and confining ourselves to the record proper, the only error we find therein is in the amount of the damages awarded, which could not exceed the claim of the petition. And as the rents and profits were found to be only $2 per month, the ouster alleged to have been on February 12, 1896, and the suit instituted on October 2, 1897, the damages ought to have been assessed at $39.34 instead of at the sum of $125. As the plaintiff offers to remit any excess of the judgment in this respect, it is ordered that upon a remittitur of $85.66 of the judgment for damages, within thirty days, the same be affirmed, otherwise, the judgment will be reversed and cause remanded.

All concur.