132 MO 92 - Downing v. Dinwiddie

How this case has been cited

Cited by 7 later decisions — most recently June 1981

7 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 *101ON MOTION NOE EEHEAEING.

Pee Cueiam (Beaoe, C. J., and Baeclay, Macnaelane, and Robinson, JJ.).

¶2The motion for rehearing has called for a review of all the rulings announced in the first opinion. We adhere to them, except in the particulars we shall point out.

¶3The briefs in this court and the record of the trial indicate that plaintiff’s legal title to lot 14 was conceded, and the evidence, we think, showed that plaintiff was in the enjoyment of the disputed strip, as an alley, during several months of 1891, until defendants interfered with his enjoyment, shortly before the bringing of this suit. Defendants’ proof in the trial court was directed toward the establishment of a right to the exclusive use of the strip, by adverse possession. Their claim then and their argument in this court were alike founded on that contention.

¶4Oral evidence of transfers of lot 14 from the common source of title came in without objection, on that theory. But now, on the motion for rehearing, it is insisted that plaintiff has not sufficiently proved his own title to warrant a final decree in his favor.

¶5Parties are usually held bound on appeal by the positions they take at the trial; and after bringing a case to judgment here on one theory, it is rather late to open up an entirely new field'of legal controversy.

¶6If there was a total want of proof of title in plaintiff, the circuit judgment would necessarily be correct and be affirmed. But the evidence, we consider, disclosed plaintiff’s title, though some of the links of it were furnished by statements of witnesses which might have been held incompetent had timely objections been, interposed.

¶7It is too late to start such objections in this court.

¶8As our ruling, however, on the title would be final, *102in an action of this nature, we believe it proper and just to direct a new trial of the cause, in accordance with the principles herein declared, and our former decision is so modified.

¶9The judgment is therefore reversed, the cause remanded, and the motion for rehearing overruled, with the concurrence of all the members of the first division.