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court, when requested by either party, "shall | time, then the deed from the sheriff operated state in writing the conclusion of facts found separately from the conclusions of law." Rev. St. 1889, § 2135. We are of the opinion that, under this provision, the court is required to find and state in writing, not only every constitutive fact in issue to which his attention is directed, but also, separately, the conclusions of law thereon, in order that exceptions may be taken thereto. Prior to this act the court, when trying a case in which the parties were entitled to a jury, was required, when requested, to state in writing the conclusions of law. This was done in the form of declarations of law asked by the parties. The conclusions of law were shown by giving or refusing these declarations. We doubt whether, by this act, the legislature intended to change the practice in this respect. The only substantial change made is in respect to a finding of facts. Whether the conclusions of law were required to be stated in a form or manner different from what was required under the rules of practice then in force does not appear. We are well satisfied, We are well satisfied, however, that, if either party desire the court to declare the law specially upon any conclusion of facts found, it is his duty to make a specific request that it do so. Faning to make such request, a general finding for one party is equivalent to a declaration of law that, upon all the facts found, such party is entitled to recover, and is sufficient to support the judgment. The general finding for defendants in this case was equivalent to saying that, upon the facts, as found, no other conclusion of law could be reached than that defendants had a right to the possession of the property in suit, which plain tiffs could not disturb. If that legal conclusion necessarily follows from the conclusions of facts found, the conclusion of law would appear to be sufficiently definite.

2. The suit is prosecuted in the names of the husbands of Anna Cummins and Medora Turner, who will be designated as plaintiffs in this opinion. Harriet Cochran, the ancestor of plaintiffs, is the common source of title. Defendants claim through a sheriff's deed upon a sale under a judgment in partition among the heirs of the said Harriet and the heirs of one Benjamin V. Glime, who claimed an equitable title to one undivided one-half of the premises. Plaintiff's are the heirs at law of the said Harriet Cochran, and have her title by descent, unless divested thereof by virtue of said sheriff's deed, the tax deed, or the statute of limitations. The view we take of the case makes it necessary to consider only the validity of the proceedings in the partition suit, which resulted in the sheriff's sale and deed. The court undoubtedly had jurisdiction of the subject-matter of that suit. Plaintiffs were all named as parties to the proceeding. If they were in fact parties, according to the rules of law in force at the

as a bar against them to any claim or title
they held. No objection is made to the reg-
ularity of the proceedings in other respects.
Plaintiffs Anna Cummins and Medora Turn-
er insist that the court never acquired juris-
diction over them in the partition proceed-
ings, and as to them the judgment is abso-
lutely void upon the face of the record. It
appears from the record that these two
plaintiffs were married women at the time
the judgment was rendered, and that their
husbands were not joined with them as par-
ties defendant. This omission, it is claim-
ed, rendered the judgment void as to them.
It is not claimed that a judgment in partition
suit is not conclusive and binding upon the
rights of a married woman in the subject-
matter of the proceedings, in case she has
been brought under the jurisdiction of the
court. But said plaintiffs insist that, in or-
der to acquire jurisdiction over a married
woman, it was essential that her husband
be joined with her, and that he also be
brought within the jurisdiction of the court,
and that the partition law makes no excep-
tion to the rule. The partition act and gen-
eral practice acts in force at the time this
judgment was rendered are found in the
General Statutes of 1865. Chapter 152
treats of partition. By an examination of
this chapter, which undertakes to treat of
the entire subject, and to regulate the pro-
ceedings, no distinction is made between an
interested married woman and any other
party in interest. It speaks of all alike as
parties in interest.
parties in interest. Married women are in-
cluded in this description. Davenport v. City
of Hannibal, 120 Mo. 150, 25 S. W. 364. They
may be joined as plaintiffs, or made defend-
ants. If omitted entirely, they may appear
and be made parties, on application for that
purpose. Gen. St. 1865, c. 152, § 9. They
may appear and confess judgment. Section
12. The act does not require that husbands
of interested married women shall be made
parties. It treats fully of the subject of
parties, and the omission could not have
been inadvertently made. By the very
clearest implication, the partition act does
authorize a married woman to sue and be
sued alone in partition cases, and in respect
to her own interest in the premises sought
to be divided. The husband is only a nec-
essary party in respect to his marital rights
in his wife's property, or rights he may
have independently of those of his wife.
The object of partition is not to defeat the
rights of any of the common owners, but
merely to separate them, so that each may
hold his interest in severalty. The partition
act is independent of the practice act in all
matters of practice for which provision is
made, and, under it, this court has held that
the rights of infants are regulated; and,
though the practice act requires suits by and
against infants to be prosecuted by guard-
ian or next friend, a judgment in partition

to which an infant appeared by next friend was held erroneous on appeal, for the reason that the partition act requires such suits to be prosecuted by guardian. Colvin v. Hauenstein, 110 Mo. 581, 19 S. W. 948. The independent rights of a married woman in matters of the partition of property held in common with others are illustrated in a recent case, in which it was held that, under certain circumstances, a parol partition would bind her in equity. Sutton v. Porter, 119 Mo. 103, 24 S. W. 760. Our conclusion is that the judgment was not void by reason of the omission to join the husbands of the married women as parties to the proceedings. Married women are clearly authorized, under the partition act, to sue and be sued alone, that is, without joining their husbands with them; and the provision of said act that "all pleadings and proceedings under this chapter, except as may be herein otherwise provided, shall be as in ordinary civil actions," has no application to the joinder of husband in suits for the partition of the land of the wife.

3. Objection is next made to the jurisdiction of the court over these plaintiffs on the ground that the record shows that they appeared by next friends, which, it is claimed, was wholly unauthorized, and therefore was insufficient to give the court jurisdiction over them. It has been said that "when the recitals of the judgment show any facts jurisdictional in their character which negative the jurisdiction of the court, then the record is self-impeached." Brown, Jur. § 26. The principle is well settled under the decisions of this state that when the judgment recites generally the service of process, and the record shows the manner of service, the recital will be construed as referring to the service shown. If that service is insufficient to give the court jurisdiction, the recital will be impeached. This principle is recognized in both the majority and minority opinions in Bell v. Brinkmann, 123 Mo. 273, 27 S. W. 374. So, if the judgment recites an appearance, and the mode of the appearance is shown by the record, the recital will be presumed to refer to such mode. The partition judgment recites that Mrs. Cummins and Mrs. Turner appeared to the action and agreed to the judgment, but the answer which was filed in the cause, and was a part of the record, shows that their appearance was by their next friends. Upon the record, then, the presumption is that their appearance was by next friend, and not otherwise. If such an appearance was unauthorized by law, then no jurisdiction was acquired over them, and the judgment upon the face of the record was void as to them. The conclusion was reached in the preceding paragraph that in partition suits a married could sue and defend without her husband being joined with her. The question now is whether, in such case, she is authorized to sue or defend by next friend. Suits for the

partition of land were originally of equitable cognizance. While now statutory, they partake of the nature of equitable proceedings. This equity jurisdiction is not curtailed or ousted by the statute. Courts of law and courts of equity have a concurrent jurisdiction in these suits. Saving Inst. v. Collonious, 63 Mo. 290. The rule in equity suits is that, when a married woman answers alone, without her husband, she does so by her next friend. Story, Eq. Pl. § 873. In the absence of any statute, then, these plaintiffs could have appeared and answered by next friend. Looking to the general practice act of 1865, we find this provision relating to suits by and against married women: "When a married woman is a party, her husband must be joined with her, except that: First, when the action concerns her separate property, she may sue and be sued alone; second, when an action is between herself and husband, she may sue and be sued alone. But, when her husband cannot be joined with her, as herein provided, she may prosecute and defend by her next friend." This statute is remedial. Its manifest purpose, was to enlarge the rights of a married woman, in respect to the control of her husband, in suits wherein her individual property was involved, and in which the husband had no marital interest, and in suits in which the interest of husband and wife are, or might be, antagonistic. In all such cases it is manifest either that no necessity existed for joining the husband, or there was impropriety in doing so. To such suits we think the statute was intended to apply: The intention in such cases was to adopt the rule in equity practice. The statute being remedial, such liberal construction should be given it as will advance the remedy. Campbell v. Railway Co., 121 Mo. 346, 25 S. W. 936; Claflin v. Van Wagoner, 32 Mo. 252. We do not think the words "separate property," as used in the statute, should be given the technical meaning that is applied to the words "separate estate," when used to distinguish the equitable, from the legal, estate of a married woman. They imply no more than to designate property in which the marital rights of the husband are excluded, or do not exist. The record in the partition suit shows that Harriet Cochran, the ancestor of plaintiffs, on her death left her husband surviving her. Upon her death he took an estate for his own life in the entire property. The heirs took an estate in remainder. life estate was outstanding at the date of the judgment. The wife had no possession, or right of possession, while the life estate continued, and the husband could have none through her. There was, moreover, no such seizure in fact in the wife as created an initiate estate by the curtesy in the husband. Carpenter v. Garrett, 75 Va. 129. The husbands of plaintiffs, therefore, had no manner or degree of legal interest in the estate of their wives in this land. The estate in

The

remainder was the separate property of the wives so long as the life estate continued. It follows that, under the terms of the statute, these married women properly defended by next friend.

4. It is next insisted that the answer of F. A. Mitchell, as next friend of said Anna Cummins and Medora Turner, was insufficient, because not subscribed by him. It was shown that the name of F. A. Mitchell, appearing in the body of the answer as next friend of these two defendants, was written by himself. It is true that all pleadings were required by statute to be signed by the parties, or their attorneys; but we see no reason why this statutory requirement should not be given the same construction as has been given to the statute of frauds. In regard to that statute it is said: "In regard to the place of the signature, there is no instruction. It may be at the top, or in the body, of the memorandum, as well as at the foot." Browne, St. Frauds, § 357. But the answer was amendable, and the rule is that judicial proceedings that are amendable are not void. The court found, and recited in the judgment, that defendants appear and file their answer, admitting the truth of the allegations in the petition. A failure to sign the answer cannot be regarded as a matter of substance, and does not render the judgment void. Gen. St. 1865, p. 671, § 19; Rosenheim v. Hartsock, 90 Mo. 365, 2 S. W. 473, and cases cited.

5. It is next insisted that plaintiff George L. Cochran, who was also a plaintiff in the partition suit, was at the time a minor, and appeared by attorney, instead of by guardian, as required by the partition act. Section 1 of that act provided that suits for the partition of land might be commenced by any one or more of the parties interested therein, whether adults or minors. Said plaintiff was therefore authorized to join as a plaintiff, and submit himself to the jurisdiction of the court. But the act also provides that an infant shall be represented in such suits by his general guardian, or by one appointed by the court. Gen. St. 1865, c. 152, §§ 48, 49. The appointment of a guardian ad litem by the court may, under the partition act, be made before or after any proceeding has been commenced. The proceedings in respect to infants are governed by the partition act, and not by the general practice act. Colvin Case, 110 Mo. 583, 19 S. W. 948. It appears, therefore, that a minor, as he may be brought into court as a defendant by service of process, so he may submit himself to the jurisdiction of the court as a plaintiff; after which, in either case, it becomes the duty of the court to appoint a guardian ad litem to represent him. In either case, however, the court acquires jurisdiction over him, and the judgment would not be void by reason of a failure of the court to appoint a guardian. Fulbright v. Cannefox, 30 Mo. 425. In this

case the court held that "such judgments are not nullities, but may be set aside on terms." See, also, Charley v. Kelley, 120 Mo. 143, 25 S. W. 571. But the legislature, by an act which took effect March 13. 1867, the day before the rendition of this judgment, declared that no judgment, after trial or submission, shall be reversed, impaired, or in any way affected, by reason of "any party under twenty-one years of age having appeared by attorney, if the judgment or verdict be for him." 2 Wag. St. p. 1036, § 19; Brandon v. Carter, 119 Mo. 583, 24 S. W. 1035. The judgment in this case was in exact conformity to the prayer of the petition of said infant plaintiff, and cannot be affected on the ground that he appeared by attorney, instead of by guardian.

6. Plaintiffs in the partition suit were represented by Douglass & Gage as attorneys. Two of the defendants therein, namely, Charles A. Cochran and James Cochran, appeared and answered by the said Douglass as their attorney. These defendants were both adults, one a son, and the other the husband, of the said Harriet Cochran. Neither was under disability. By their answer they admitted all the allegations of the petition, and agreed that judgment should be rendered according to the prayer of the petition. This appearance and confession the court found as a fact, and the judgment so recites. It is now insisted that the court obtained no jurisdiction over Charles A. Cochran through his appearance by one of the attorneys who represented the plaintiffs. We do not think it necessary in this case to consider the effect of an appearance of a defendant by one of the counsel of plaintiffs, in a suit for partition, in which the rights of the parties are not disputed. The court found specially that the purchase of the land at the sale by the sheriff by James Cochran, one of the defendants, was made by agreement of the parties, with the understanding that the title acquired should inure to the benefit of all the parties in interest. Such an executed agreement, standing unquestioned for 20 years, surely estops him, at this day, to deny the jurisdiction of the court over him. He clearly ratified the judgment by his acts in subsequent proceedings upon it. That such judgments may be ratified by the acts of parties whose interests are thereby adjudicated is well settled by the decisions of this court. It is said in Pockman v. Meatt, 49 Mo. 349: "In proceedings in partition the sale is by the act of the parties themselves, as well as by the judgment, and is not a sale in invitum, like an ordinary sheriff's sale under execution." See, also, Pentz v. Kuester, 41 Mo. 447. It was said by Sherwood, J., in discussing the effect a receipt of the proceeds of a sale in partition would have upon a party in interest: "If she knew from what source these frauds came, and still receipted for them, she certainly would not be allowed to re

Attack, §§ 420, 421, and cases cited.

pudiate the transaction now, even if the | invulnerable collaterally. Van Fleet, Coll. partition proceedings were in fact void. She certainly could not have both the money and the land." McClanahan v. West, 100 Mo. 323, 13 S. W. 674; Fischer v. Siekmann, 125 Mo. 165, 28 S. W. 435. The same rule of estoppel has been applied to judgments in cases other than partition. Austin v. Loring, 63 Mo. 23; Clyburn v. McLaughlin, 106 Mo. 524, 17 S. W. 692; Lanier v. McIntosh, 117 Mo. 519, 23 S. W. 787. The special finding of fact that the purchase was made by James Cochran, the father of the heirs of Harriet Cochran, for their benefit, is conclusive upon this court; especially so, in view of the fact that its correctness is not questioned by appellants.

7. Evidence was offered by plaintiffs which tended to prove that the appearance of none of them to the partition suit was authorized, and that they had in fact no knowledge of that proceeding whatever. Upon this quesUpon this question the court made no finding of fact. The omission is assigned as error. The statute requires the court, when requested by either party, "to state in writing the conclusion of facts separately from the conclusions of law." Rev. St. 1889, § 2135. Elliott, in his recent work on Practice (section 975), gives this rule as one, in his opinion, founded upon right principle: "If a special finding is silent on a material point, it is deemed a finding against the party who has the burden of proof." This rule finds support in the decisions of the supreme court of Indiana. Railroad Co. v. Hart, 119 Ind. 280, 21 N. E. 753; Bank v. Bolin, 121 Ind. 304, 23 N. E. 146. But in this case plaintiffs asked the court to state a conclusion of law, to the effect that, if their appearance was not authorized, the judgment was void. This declaration of law was refused. From this we may infer that the court held the fact to be immaterial under the pleadings and the facts that were found. We will so treat it. The question, then, comes to this: could plaintiffs in this suit, in order to avoid the force and effect of the judgment, prove that their appearance by attorney and next friend was not authorized by them? It is well settled law in this state that a foreign judgment, rendered on an unauthorized appearance, may be set aside by a direct proceeding for that purpose, or its effect overcome by a plea in equity to a suit on such judgment, or to enforce rights secured thereunder. Marx v. Fore, 51 Mo. 70; Napton v. Leaton, 71 Mo. 367; Bradley v. Welch, 100 Mo. 268, 12 S. W. 911. But the judgment, as has been seen, was valid upon the face of the proceedings, and no direct attack is made upon it here. The attempt is to defeat its force by an indirect and collateral attack, which we think cannot be done. Whether the appearances were authorized or not, was a question upon which the court had the power to pass, and in fact necessarily did pass, in finding that the parties appeared. The finding is

8. It appears from the record that one of the heirs of Harriet Cochran died without issue before the commencement of this suit, and that an interest in his estate descended to his half brothers and sisters. These were not made parties to the partition suit. It is now insisted that the entire judgment for that reason is void. For this contention reliance is placed upon certain decisions of this court. Damerson v. Jameson, 71 Mo. 97; Estes v. Nell, 108 Mo. 172, 18 S. W. 1006. Counsel, we think, misapprehended the scope of the rulings in these cases, and the proper construction of the statute, which requires every person having an interest in the premises to be made a party to the action. These cases go no further than to hold that, in case it appears from the pleadings or evidence that persons have an interest in the property who are not made parties to the action, a judgment should not be rendered until such persons are made parties, and brought under the jurisdiction of the court. It was not held nor intimated that a judgment of partition could be avoided by one of the parties to it, upon the ground that others, who were not parties, had an interest in the premises partitioned. Such a judgment would conclude all persons who were brought within the jurisdiction of the court.

The judgment is affirmed.

BRACE, P. J., and BARCLAY and ROBINSON, JJ., concur.

STATE ex rel. WADDELL v. SMITH et al.,
Judges.

(Supreme Court of Missouri, Division No. 1.
Nov. 26, 1895.)

APPELLATE JURISDICTION-STATE OFFICERS-
PARTY TO ACTION.

Under Const. art. 6, § 2 (Amend. 1884, § 5), conferring appellate jurisdiction on the supreme court in cases where any state officer is a party, the court of appeals has no jurisdiction of an appeal where defendant insurance company, during the pendency of the appeal, was adjudged insolvent, and the state superintendent of insurance was invested, under 2 Rev. St. 1889, §§ 5944, 5945, with authority to wind up its affairs; and the laches of the superintendent in causing the appeal to be transferred cannot affect the question of jurisdiction.

Original proceeding in mandamus brought by the state, upon the relation of James R. Waddell, against J. L. Smith and others, as judges of the Kansas City court of appeals. Granted.

M. W. Huff and Brown & Pratt, for relator. Lander & Johnson, for respondents.

BRACE, C. J. This is a proceeding in mandamus. The relator is the superintendent of the insurance department of the

state of Missouri. The respondents are the judges of the Kansas City court of appeals. The question arises upon a demurrer to the respondents' return to the alternative writ. The facts disclosed by the pleadings are that on the 28th of September, 1893, judgment was rendered in the circuit court of Linn county in the case of Lillian N. Hannum, plaintiff, against the National Temperance Relief Union, defendant, in favor of said plaintiff, for the sum of $1,070.08. On the 1st day of March, 1894, an appeal from that judgment was granted defendant to the Kansas City court of appeals, with leave to file bill of exceptions at any time prior to the 15th day of July, 1894. Said bill of exceptions was filed on the 28th day of June, 1894. On the 4th of August, 1894, in a proceeding instituted in the circuit court of Buchanan county by the relator, as superintendent as aforesaid, against the said National Temperance Relief Union, defendant, the said defendant was adjudged to be insolvent, and by the decree of said court enjoined from further carrying on business in this state, the corporation dissolved, and the title to its assets at once vested in the relator, as superintendent as aforesaid, with directions to wind up its affairs under the statute and the further orders of said court. On the 15th of September, 1894, there was filed in said court of appeals a duly-certified copy of said judgment of the Linn circuit court, in the cause appealed as aforesaid, under the provisions of section 2253, Rev. St. 1889. Afterwards, at the March term, 1895, of said court of appeals, the plaintiff in said cause (in pursuance of notice served upon said defendant's attorneys that such a motion would be presented to said court on the 4th day of March, of said term) filed his motion to affirm the judgment, under section 2252, on the ground that defendant had not prosecuted its appeal. Afterwards, on the 8th day of March, 1895, the relator filed his motion to be substituted as party appellant and defendant in said cause, by virtue of the decree of the Buchanan circuit court aforesaid; also, his motion to transfer said cause to the supreme court, because a state officer is a party to said cause. Afterwards, during said term, and on the 1st day of April, 1895, these several motions having been considered by said court, the plaintiff's motion to affirm the judgment was sustained, and the relator's motions to be substituted as prayed for, and to transfer the cause to this court, were overruled. Thereupon the relator filed his motion for rehearing, which was also overruled, and the judgment of the circuit court affirmed. Afterwards, on the 24th day of May, 1895, the mandate of said court of appeals affirming said judgment was duly issued to the clerk of the circuit court of Linn county, and filed in his office on the 1st day of June, 1895; and on the 17th of June, 1895, the said court of appeals finally adjourned said March term of said court. Aft

erwards the alternative writ herein was sued out, and served on the judges of said court of appeals, respondents. On this state of facts, substantially set out in the return, the respondents contend that they ought not to be required to, and cannot, transfer said cause to this court.

It may be conceded that the proceedings of the court of appeals in affirming the judgment in the cause aforesaid were entirely regular, and in accordance with the rules and practice of that court; but what does this amount to, unless the court had power to take such proceedings? It is not disputed that upon the rendition of the judgment in the Buchanan circuit court, on the 4th of August, 1894, dissolving the defendant company in the cause appealed, and declaring it insolvent, the assets of said company vested absolutely in the relator, as superintendent of the insurance department of the state, whose duty it was to take immediate possession of the same, and in his own name, as such superintendent, to maintain and defend all actions in the courts "relating to such company, its assets, liabilities, and business." 2 Rev. St. 1889, §§ 5944, 5945. Thereafter the appeal which was then pending in the Kansas City court of appeals could only be prosecuted by the relator in his official capacity. The appellant having died by virtue of that decree, the cause could not progress at all until its proper representative was substituted in the action. The moment that substitution was attempted, the fact was disclosed that the issues in the cause thereafter to be determined were in a case in which a "state officer is a party," and in which said court of appeals had no jurisdiction; the jurisdiction to try and determine the same being vested in this court by the constitution. Const. art. 6, § 12; Amend. 1884, § 5. The only power the court of appeals had over the case after the rendition of the decree in the Buchanan circuit court was to permit the superintendent of the insurance department to be substituted as a party appellant therein, and transfer the cause to this court, or to transfer it without such substitution. It is no answer to this to say that that officer was not diligent in bringing the condition of the case to the notice of the court of appeals more promptly than was done. The appeal could not have been prosecuted in that court, and we cannot see how his laches, if any, could confer jurisdiction upon that court to dispose of the case by affirming the judgment of the court below, as was done. The proceedings of that court in this behalf were coram non judice. The case stands in that court now as if nothing had been done since the appeal was perfected. The case being there, and the jurisdiction to determine it here, it should be immediately transferred to this court. The peremptory writ prayed for will therefore be granted. All concur.

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