DocketNumber: No. 647.
Citation Numbers: 3 S.W.2d 840
Judges: BARCUS, J.
Filed Date: 2/16/1928
Status: Precedential
Modified Date: 1/12/2023
Mrs. J. H. Smalling and husband owned 77 acres of land near Trinidad in Henderson county. Mr. Smalling died intestate, leaving his wife and seven children. This suit was instituted by Mrs. Smalling and five of the children against the other two children, Mrs. Jackson and Charles Smalling, appellants herein, for a partition of said tract of land, alleging that Mrs. Smalling was entitled to a one-half interest and each of the seven children to a one-fourteenth interest therein. Appellants answered said petition and admitted the property was owned in the proportions named by appellees. The cause was tried to the court at its February term 1927, and the court found the property was subject to division in kind, and that Mrs. Smalling was entitled to a one-half interest and each of the seven children to a one-fourteenth interest, and appointed three *Page 841 commissioners to divide the property in accordance therewith and report to the August term of court. The commissioners appointed divided the property in accordance with said decree, and filed with their report the field notes to the tract of land set aside to each respective claimant. They gave to Mrs. Smalling the north one-half of the land, and divided the other half into seven parcels, and, after they had divided same, they determined the parcel of land that should go to each respective child by having same drawn by the district clerk in the presence of the district judge. Appellant Mrs. Jackson received 4 8/4 acres, and appellant Charles Smalling received 5 3/4 acres. The seven tracts of land as divided contained from 3 to 7 acres of land; each of the commissioners testifying that the smaller tracts were as valuable as the larger tracts because of the location, class, and character of the property. Those who received the smallest tracts are not complaining.
Appellants contested the report of the commissioners, and asked that same be set aside, and the court, after hearing the contest and evidence, in all things approved the report of the commissioners, and by decree divided the property in accordance with the said report. Mrs. Jackson and Charles Smalling alone appeal.
Appellants contend that the acts of the commissioners in dividing the estate were illegal and should not have been confirmed, because no writ of partition was issued by the clerk as provided by article
"In the absence of some showing by defendants that some injustice was suffered by them in the trial, or as the result of the judgment entered, this court will not reverse simply because of an abstract error committed by the trial court."
The expense incident to the issuing of a writ and service upon the commissioners is unnecessary when the commissioners will accept notice and perform the services required without that expense being incurred.
Appellants further contend that the partition between the parties is void because same was not determined by lot or chance, as provided by article
*Page 842The judgment of the trial court is affirmed.