Naylor v. Chinn , 82 Mo. App. 160 ( 1899 )

GULL, J.

This is an action of forcible entry and detainer, the purpose of which is to recover the possession of certain low land or accretion on the Missouri river. The case originated in a justice’s court, was taken by appeal to the circuit court, where, on a trial by jury, plaintiff recovered, and defendant appealed.

I. It is first objected that the description of the land contained in the complaint is too indefinite and uncertain. Yre think there is no merit in this objection. The property sought to be recovered is unsurveyed land formed first into an island on the river and thence growing out to the main land. It was thus described with reference to other adjoining property referred to by well known descriptions: “A tract of land lying southeast of the original Naylor Island, south of the land conveyed by John W. White to E. H. Chinn, and being the same tract or piece of land conveyed by John Payton and May White to John P. Naylor, containing twenty-five acres more or less, all in Howard county, Missouri.” This was about as complete and definite a description as was possible under the circumstances, and the proof shows that it could be accurately located by such description. This is all that was necessary. “Great strictness and accuracy in these complaints has not been deemed essential'.” Silvey v. Summer, 61 Mo. 253; Tiplon v. Swayne, 4 Mo. 98; State v. Yansiclde, 57 Mo. App. 611.

II. It is next objected that the verification affixed to the complaint is not what the statute requires. The complaint was signed, “John P. Naylor, by B. White, his agent and attorney.” And then follows: “Subscribed and sworn to before me this 5th day of October, 1898. J. E. Champion, Justice of the Peace.”

The statute (section 5092), requires the complaint to be made to any justice of the peace of the proper county, and that it “shall be made in writing, signed by the party aggrieved, his agent or attorney, and sworn to.” We fail now to see wherein the above verification is deficient. The complaint appears to have been signed by the attorney of the plaintiff and to have been sworn to by the party subscribing to the paper. This fills the demand of the statute. But even if we concede the verification to be irregular or imperfect, the defendant can not now be heard to complain because he failed to make any such objection in the lower court. Wiltshire v. Triplett, 71 Mo. App. 332. While the case was in the lower court, the plaintiff, on objection made to the sufficiency of the affidavit, might have amended it. The defendant then- will not be allowed to pass over the irregularity there and .raise an objection for the first time in this court. Dean v. Trax, 67 Mo. App. 517.

III. The third and fourth assignments of error are also without merit. It was not error to permit the plaintiff to testify that the land in dispute was embraced in the deed he procured from other parties, for as was said in City of St. Louis v. Meyer, 13 Mo. App. loc. cit. 382, “what are the boundaries of land conveyed by a deed is a question of law; where the boundaries are is a question of fact.” And as to the court’s action in refusing defendant’s offer to read in evidence the deed from John White to himself, there was no error, for the evidence clearly shows that said deed had nothing to do with the land in dispute. Defendant testified that he procured a deed from White covering the land in controversy but was unable to find it, and did not therefore have it present at the trial.

IV. As to the propriety of the instructions given little need be said. The court gave all that were asked by both parties, and the only objection that can be reasonably made thereto is that they were unnecessarily numerous and lengthy. When however these instructions are all read together as one charge, they fairly present the entire case.

V. If defendant desired to raise the point here that the cause was improperly tried before a jury of six instead of twelve men he should have made his objection in a motion in arrest. Since then he failed so to do he can not now complain. Even then, though the defendant was entitled to á jury of twelve men, yet “if the trial proceeds with a less number, and he takes no exception on that ground he can not after-wards avail himself of the error except by motion in arrest of judgment.” Vaughn v. Scade, 30 Mo. 600.

VI. The judgment, however, as entered by the court below, is not in proper form. It fails to set out.or describe the land, the possession of which is to be restored to plaintiff. The judgment then on the merits will be affirmed, but the cause will be remanded so that a proper judgment nunc pro tunc may be entered. The costs of this appeal will be equally divided between the parties.

All concur.