Canady v. Melette

ROBERTSON, P. J. —

Plaintiff alleges in his petition that the defendant is the widow of J. E. Mellette who died in Springfield in March, 1910; that on May 29, 1899, the plaintiff recovered judgment against the said deceased in the circuit court of Greene county for the sum of $275.85; that the said J. E. Mellette died insolvent and that there has been no administration on his estate; that on February 3, 1909, he obtained judgment for $525.65 in a suit on the first judgment; that on July 6,1903, certain land in Stone county, Missouri, was conveyed to the defendant for the declared consideration of $7,572; that the defendant paid no part of said consideration nor any part of the purchase price of the land so conveyed, but that the whole of said purchase price was paid by the said J. E. Mel-lette with his funds; that at the time of said conveyance the said J. E. Mellette was indebted to the plain-titff in the sum represented by the judgment obtained on May 29, 1899, but had no lands in the State of Missouri subject to execution, or on which this judgment could be a lien, and that the said J. E. Mellette procured the conveyance of said lands to be made to the defendant to defraud this plaintiff.

The record does not disclose any answer but it is stated in respondents brief that a general denial was filed.

Plaintiff offered in evidence a deed from some parties to the defendant dated July 6, 1903, wherein the consideration recited is one dollar, conveying the land described in the plaintiff’s petition and other lands.

There was also offered in evidence a contract entered into between various parties and J. E. Mellette dated March 30, 1896, reciting that- on April 5, 1894, those parties and J. E. Mellette had purchased certain lands therein described, and reciting that one of the parties therein named held the lands described in that contract in trust for another party and the said J. E. Mellette. The land described in this contract amounted to over 11,000 acres and included the land mentioned in the plaintiff’s petition. Appended to this contract was an assignment by J. E. Mellette to the defendant for the expressed consideration of $3000, dated April 3, 1898.

The testimony discloses that on November 7, 1881, the mother of J. E. Mellette conveyed by warranty deed 120 acres of land in Henry county, Indiana, to J. E. Mellette and the defendant “for and in consideration of natural love and affection and one dollar.” The defendant testified that this land was used to pay the debts of J. E. Mellette and thereafter constituted the consideration for the assignment of the. contract, to which reference has been made above.

The notes upon which the first judgment in favor, of the plaintiff was rendered were introduced in evidence and were dated in the years 1896 and 1897.

The trial in the circuit court resulted in .a decree in favor of the defendant and the plaintiff has appealed to this court, but the abstract of the record contains the following statement only in regard to the motion for new trial: “Plaintiff filed his motion for new trial and in arrest of judgment in the usual form and within the time, which were overruled and the plaintiff appealed to this court.”

It is apparent from this condition of the record that we cannot consider the action of the trial court in entering this decree, for the reason that it is not shown here what errors were urged upon the trial court in plaintiff’s effort to secure a new trial. This is a court of appellate jurisdiction and it is a rule of law long established, and supported by reason, that a trial court must first be given the opportunity to correct any errors upon which the appealing party seeks to rely before the jurisdiction of this court can be invoked; and if such were not the rule parties might raise for the first time in this court such objections as occur to them and thereby secure reversals upon questions not considered or decided by the trial conrt, aPd sneh a practice would lead to unfair results.

It has uniformly been held in this State that errors alleged for the first time in the appellate court should not be considered, and that a motion for' a new trial must be shown here to the end that we may ascertain, what questions were decided by the trial court. [Street v. School Dist., 221 Mo. 663, 672, 120 S. W. 1159; Maplegreen Realty Co. v. Miss. Valley Trust Co., 237 Mo. 350, 362, 141 S. W. 621; Inv. Security Co. v. Williams, 143 Mo. App. 324, 126 S. W. 968; Coy v. Landers, 146 Mo. App. 413, 419, 125 S. W. 789.]

It necessarily follows that the judgment of the trial court must be affirmed.

All concur.