« 이전계속 »
court, when requested by either party, "shall time, then the deed from the sheriff operated state in writing the conclusion of facts found as a bar against them to any claim or title separately from the conclusions of law.” they held. No objection is made to the regRev. St. 1889, $ 2135. We are of the opinion ularity of the proceedings in other respects. that, under this provision, the court is re- Plaintiffs Anna Cummins and Medora Turnquired to find and state in writing, not only er insist that the court never acquired jurisevery constitutive fact in issue to which his diction over them in the partition proceedattention is directed, but also, separately, the ings, and as to them the judgment is absoconclusions of law thereon, in order that lutely void upon the face of the record. It exceptions may be taken thereto. Prior to appears from the record that these two this act the court, when trying a case in plaintiffs were married women at the time which the parties were entitled to a jury, the judgment was rendered, and that their was required, when requested, to state in husbands were not joined with them as parwriting the conclusions of law. This was ties defendant. This omission, it is claimdone in the form of declarations of law ask- ed, rendered the judgment void as to them. ed by the parties. The conclusions of law It is not claimed that a judgment in partition were shown by giving or refusing these dec- suit is not conclusive and binding upon the larations. We doubt whether, by this act, rights of a married woman in the subjectthe legislature intended to change the prac- matter of the proceedings, in case she has tice in this respect. The only substantial been brought under the jurisdiction of the change made is in respect to a finding of court. But said plaintiffs insist that, in orfacts. Whether the conclusions of law der to acquire jurisdiction over a married were required to be stated in a form or woman, it was essential that her husband manner different from what was required be joined with her, and that he also be under the rules of practice then in force brought within the jurisdiction of the court, does not appear. We are well satisfied, and that the partition law makes no excephowever, that, if either party desire the tion to the rule. The partition act and gencourt to declare the law specially upon any eral practice acts in force at the time this conclusion of facts found, it is his duty to judgment was rendered are found in the make a specific request that it do so. Tan- General Statutes of 1865. Chapter 152 ing to make such request, a general finding treats of partition. By an examination of for one party is equivalent to a declaration this chapter, which undertakes to treat of of law that, upon all the facts found, such the entire subject, and to regulate the proparty is entitled to recover, and is sufficient ceedings, no distinction is made between an to support the judgment. The general find- interested married woman and any other ing for defendants in this case was equiva- party in interest. It speaks of all alike as lent to saying that, upon the facts, as found, parties in interest. Married women are inno other conclusion of law could be reached cluded in this description. Davenport v. City than that defendants had a right to the pos- of Hannibal, 120 Mo. 150, 25 S. W. 364. They session of the property in suit, which plain may be joined as plaintiffs, or made defendtiffs could not disturb. If that legal conclu- ants. If omitted entirely, they may appear sion necessarily follows from the conclusions and be made parties, on application for that of facts found, the conclusion of law would purpose. Gen. St. 1865, c. 152, § 9. They appear to be sufficiently definite.
may appear and confess judgment. Section 2. The suit is prosecuted in the names of 12. The act does not require that husbands the husbands of Anna Cummins and Me- of interested married women shall be made dora Turner, who will be designated as parties. It treats fully of the subject of plaintiffs in this opinion. Harriet Cochran, parties, and the omission could not have the ancestor of plaintiffs, is the comnion been inadvertently made. By the very source of title. Defendants claim through a clearest implication, the partition act does sheriff's deed upon a sale under a judgment authorize a married woman to sue and be in partition among the heirs of the said Har- sued alone in partition cases, and in respect riet and the heirs of one Benjamin V. Glime, to her own interest in the premises sought who claimed an equitable title to one undi- to be divided. The husband is only a necvided one-half of the premises. Plaintiffs essary party in respect to his marital rights are the heirs at law of the said Harriet in his wife's property, or rights he may Cochran, and have her title by descent, un- have independently of those of his wife. less divested thereof by virtue of said sher- The object of partition is not to defeat the iff's deed, the tax deed, or the statute of rights of any of the common owners, but limitations. The view we take of the case merely to separate them, so that each may makes it necessary to consider only the va- hold his interest in severalty. The partition lidity of the proceedings in the partition act is independent of the practice act in all suit, which resulted in the sheriff's sale and matters of practice for which provision is deed. The court undoubtedly had jurisdic- made, and, under it, this court has held that tion of the subject-matter of that suit. Plain- the rights of infants are regulated; and, tiffs were all named as parties to the pro- though the practice act requires suits by and ceeding. If they were in fact parties, ac- against infants to be prosecuted by guardcording to the rules of law in force at the ian or next friend, a judgment in partition to which an infant appeared by next friend, partition of land were originally of equitable was held erroneous on appeal, for the reason cognizance. While now statutory, they parthat the partition act requires such suits to take of the nature of equitable proceedings. be prosecuted by guardian. Colvin v. Hau- This equity jurisdiction is not curtailed or enstein, 110 Mo. 581, 19 S. W. 948. The ousted by the statute. Courts of law and independent rights of a married woman in courts of equity have a concurrent jurisdicmatters of the partition of property held in tion in these suits. Saving Inst. v. Collonicommon with others are illustrated in a re- ous, 63 Mo, 290. The rule in equity suits is cent case, in which it was held that, under that, when a married woman answers alone, certain circumstances, a parol partition without her husband, she does so by her next would bind her in equity. Sutton v. Porter, friend. Story, Eq. Pl. $ 873. In the absence 119 Mo. 103, 24 S. W. 760. Our conclusion of any statute, then, these plaintiffs could is that the judgment was not void by reason have appeared and answered by next friend. of the omission to join the husbands of the Looking to the general practice act of 1865, married women as parties to the proceed- we find this provision relating to suits by ings. Married women are clearly author- and against married women: "When a marized, under the partition act, to sue and be ried woman is a party, her husband must be sued alone,-that is, without joining their joined with her, except that: First, when husbands with them; and the provision of the action concerns her separate property, said act that "all pleadings and proceedings she may sue and be sued alone; second, under this chapter, except as may be herein when an action is between herself and husotherwise provided, shall be as in ordinary band, she may sue and be sued alone. But, civil actions," has no application to the when her husband cannot be joined with her, joinder of husband in suits for the partition as herein provided, she may prosecute and of the land of the wife.
defend by her next friend." This statute is 3. Objection is next made to the jurisdic
remedial. Its manifest purpose, was to ention of the court over these plaintiffs on the large the rights of a married woman, in reground that the record shows that they ap- spect to the control of her husband, in suits peared by next friends, which, it is claimed, wherein her individual property was involvwas wholly unauthorized, and therefore was ed, and in which the husband had no marital insufficient to give the court jurisdiction over
interest, and in suits in which the interest them. It has been said that “when the re- , of husband and wife are, or might be, ancitals of the judgment show any facts ju
tagonistic. In all such cases it is manifest risdictional in their character which nega- either that no necessity existed for joining tive the jurisdiction of the court, then the
the husband, or there was impropriety in dorecord is self-impeached." Brown, Jur. § 26. ing so. To such suits we think the statute The principle is well settled under the deci- was intended to apply: The intention in sions of this state that when the judgment such cases was to adopt the rule in equity recites generally the service of process, and practice. The statute being remedial, such the record shows the manner of service, the liberal construction should be given it as recital will be construed as referring to the will advance the remedy. Campbell v. Railservice shown. If that service is insufficient way Co., 121 Mo. 346, 25 S. W. 936; Claflin to give the court jurisdiction, the recital will v. Van Wagoner, 32 Mo. 252. We do not be impeached. This principle is recognized think the words "separate property,” as used in both the majority and minority opinions in the statute, should be given the technical in Bell v. Brinkmann, 123 Mo. 273, 27 S. W. meaning that is applied to the words "sepa374. So, if the judgment recites an appear- rate estate," when used to distinguish the ance, and the mode of the appearance is equitable, from the legal, estate of a marshown by the record, the recital will be pre- ried woman. They imply no more than to sumed to refer to such mode. The partition designate property in which the marital judgment recites that Mrs. Cummins and rights of the husband are excluded, or do Mrs. Turner appeared to the action and not exist. The record in the partition suit agreed to the judgment, but the answer shows that Harriet Cochran, the ancestor of which was filed in the cause, and was a part i plaintiffs, on her death left her husband surof the record, shows that their appearance
viving her. Upon her death he took an eswas by their next friends. Upon the record, tate for his own life in the entire property. then, the presumption is that their appear- The heirs took an estate in remainder. The ance was by next friend, and not otherwise. life estate was outstanding at the date of the If such an appearance was unauthorized by judgment. The wife had no possession, or law, then no jurisdiction was acquired over right of possession, while the life estate conthem, and the judgment upon the face of tinued, and the husband could have none the record was void as to them. The conclu- through her. There was, moreover, no such sion was reached in the preceding paragraph seizure in fact in the wife as created an that in partition suits a married woman initiate estate by the curtesy in the husband. could sue and defend without her husband Carpenter V. Garrett, 75 Va. 129. The husbeing joined with her. The question now is bands of plaintiffs, therefore, had no manwhether, in such case, she is authorized to ner or degree of legal interest in the estate sue or defend by next friend. Suits for the of their wives in this land. The estate in remainder was the separate property of the case the court held that "such judgments are wives so long as the life estate continued. not nullities, but may be set aside on terms." It follows that, under the terms of the stat- See, also, Charley v. Kelley, 120 Mo. 143, 25 ute, these married women properly defend- S. W. 571. But the legislature, by an act ed by next friend.
which took effect March 13, 1867, the day 4. It is next insisted that the answer of F. before the rendition of this judgment, deA. Mitchell, as next friend of said Anna clared that no judgment, after trial or subCummins and Medora Turner, was insuffi- mission, shall be reversed, impaired, or in cient, because not subscribed by him. It any way affected, by reason of "any party was shown that the name of F. A. Mitchell, under twenty-one years of age having apappearing in the body of the answer as next peared by attorney, if the judgment or verfriend of these two defendants, was written dict be for him.” 2 Wag. St. p. 1036, § 19; by himself. It is true that all pleadings Brandon v. Carter, 119 Mo. 583, 24 S. W. were required by statute to be signed by the 1035. The judgment in this case was in parties, or their attorneys; but we see no exact conformity to the prayer of the petireason why this statutory requirement tion of said infant plaintiff, and cannot be should not be given the same construction affected on the ground that he appeared by as has been given to the statute of frauds. | attorney, instead of by guardian. In regard to that statute it is said: "In 6. Plaintiffs in the partition suit were repregard to the place of the signature, there is resented by Douglass & Gage as attorneys. no instruction. It may be at the top, or in
Two of the defendants therein, namely, the body, of the memorandum, as well as at Charles A. Cochran and James Cochran, apthe foot.” Browne, St. Frauds, $ 357. But peared and answered by the said Douglass the answer was amendable, and the rule is as their attorney. These defendants were that judicial proceedings that are amenda- both adults, one a son, and the other the ble are not void. The court found, and re- husband, of the said Harriet Cochran. Neicited in the judgment, that defendants ap- ther was under disability. By their anpear and file their answer, admitting the swer they admitted all the allegations of the truth of the allegations in the petition. A petition, and agreed that judgment should failure to sign the answer cannot be re- be rendered according to the prayer of the garded as a matter of substance, and does petition. This appearance and confession not render the judgment void. Gen. St. the court found as a fact, and the judgment 1865, p. 671, § 19; Rosenheim v. Hartsock, so recites. It is now insisted that the court 90 Mo. 365, 2 S. W. 473, and cases cited. obtained no jurisdiction over Charles A.
5. It is next insisted that plaintiff George Cochran through his appearance by one of L. Cochran, who was also a plaintiff in the the attorneys who represented the plaintiffs. partition suit, was at the time a minor, and We do not think it necessary in this case to appeared by attorney, instead of by guard- consider the effect of an appearance of a ian, as required by the partition act. Sec- defendant by one of the counsel of plaintiffs, tion 1 of that act provided that suits for the in a suit for partition, in which the rights of partition of land might be commenced by the parties are not disputed. The court any one or more of the parties interested found specially that the purchase of the land therein, whether adults or minors. Said at the sale by the sheriff by James Cochran, plaintiff was therefore authorized to join as one of the defendants, was made by agreea plaintiff, and submit himself to the juris- ment of the parties, with the understanding diction of the court. But the act also pro- that the title acquired should inure to the vides that an infant shall be represented in benefit of all the parties in interest. Such such suits by his general guardian, or by an executed agreement, standing unquestionone appointed by the court. Gen. St. 1865, ed for 20 years, surely estops him, at this c. 152, 88 48, 49. The appointment of a day, to deny the jurisdiction of the court guardian ad litem by the court may, under over him. He clearly ratified the judgment the partition act, be made before or after by his acts in subsequent proceedings upon any proceeding has been commenced. The it. That such judgments may be ratified by proceedings in respect to infants are governed the acts of parties whose interests are thereby the partition act, and not by the general by adjudicated is well settled by the decipractice act. Colvin Case, 110 Mo. 583, 19 sions of this court. It is said in Pockman S. W. 948. It appears, therefore, that a v. Meatt, 49 Mo. 349: "In proceedings in parminor, as he may be brought into court as a tition the sale is by the act of the parties defendant by service of process, so he may themselves, as well as by the judgment, and submit himself to the jurisdiction of the is not a sale in invitum, like an ordinary court as a plaintiff; after which, in either sheriff's sale under execution.” See, also, case, it becomes the duty of the court to Pentz v. Kuester, 41 Mo. 447. It was said appoint a guardian ad litem to represent by Sherwood, J., in discussing the effect a him. In either case, however, the court ac- receipt of the proceeds of a sale in partition quires jurisdiction over him, and the judg- would have upon a party in interest: "If ment would not be void by reason of a fail- she knew from what source these frauds ure of the court to appoint a guardian. Ful- came, and still receipted for them, * bright v. Cannefox, 30 Mo. 425. In this she certainly would not be allowed to re pudiate the transaction now, even if the invulnerable collaterally. Van Fleet, Coll. partition proceedings were in fact void. She Attack, $$ 420, 421, and cases cited. certainly could not have both the money and 8. It appears from the record that one of the land." McClanahan v. West, 100 Mo. the heirs of Harriet Cochran died without 323, 13 S. W. 674; Fischer v. Siekmann, 125 issue before the commencement of this suit, Mo. 165, 28 S. W. 435. The same rule of es- and that an interest in his estate descended toppel has been applied to judgments in to his half brothers and sisters. These were cases other than partition. Austin v. Lor- not made parties to the partition suit. It is ing, 63 Mo. 23; Clyburn v. McLaughlin, 106 now insisted that the entire judgment for Mo. 524, 17 S. W. 692; Lanier v. McIntosh, that reason is void. For this contention reli117 Mo. 519, 23 S. W. 787. The special ance is placed upon certain decisions of this finding of fact that the purchase was made court. Damerson v. Jameson, 71 Mo. 97; by James Cochran, the father of the heirs Estes v. Nell, 108 Mo. 172, 18 S. W. 1006. of Harriet Cochran, for their benefit, is con- Counsel, we think, misapprehended the scope clusive upon this court; especially so, in of the rulings in these cases, and the proper view of the fact that its correctness is not construction of the statute, which requires questioned by appellants.
every person having an interest in the prem7. Evidence was offered by plaintiffs which ises to be made a party to the action. These tended to prove that the appearance of none cases go no further than to hold that, in of them to the partition suit was authorized, case it appears from the pleadings or eviand that they had in fact no knowledge of dence that persons have an interest in the that proceeding whatever. Upon this ques- property who are not made parties to the action the court made no finding of fact. The tion, a judgment should not be rendered unomission is assigned as error. The statute til such persons are made parties, and requires the court, when requested by either brought under the jurisdiction of the court. party, "to state in writing the conclusion of It was not held nor intimated that a judgfacts separately from the conclusions of ment of partition could be avoided by one of law." Rev. St. 1889, § 2135. Elliott, in his the parties to it, upon the ground that othrecent work on Practice (section 975), gives ers, who were not parties, had an interest in this rule as one, in his opinion, founded upon the premises partitioned. Such a judgment right principle: "If a special finding is si- would conclude all persons who were brought lent on a material point, it is deemed a find- within the jurisdiction of the court. ing against the party who has the burden of The judgment is affirmed. proof.” This rule finds support in the decisions of the supreme court of Indiana. Rail
BRACE, P. J., and BARCLAY and ROBroad Co. v. Hart, 119 Ind. 280, 21 N. E. 753; INSON, JJ., concur. 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
STATE ex rel. WADDELL V. SMITH et al., judgment was void. This declaration of law
Judges. was refused. From this we may infer that the court held the fact to be immaterial un
(Supreme Court of Missouri, Division No. 1. der the pleadings and the facts that were
Nov. 26, 1895.) found. We will so treat it. The question,
APPELLATE JURISDICTION-STATE OFFICERSthen, comes to this: could plaintiffs in this
PARTY TO ACTION. suit, in order to avoid the force and effect
Under Const. art. 6, § 2 (Amend. 1884,
$ 5), conferring appellate jurisdiction on the of the judgment, prove that their appear
supreme court in cases where any state officer ance by attorney and next friend was not
is a party, the court of appeals has no jurisauthorized by them? It is well settled law diction of an appeal where defendant insurance in this state that a foreign judgment, ren
company, during the pendency of the appeal,
was adjudged insolvent, and the state superindered on an unauthorized appearance, may
tendent of insurance was invested, under 2 be set aside by a direct proceeding for that | Rev. St. 1889, $$ 5944, 5945, with authority to purpose, or its effect overcome by a plea in
wind up its affairs; and the laches of the su
perintendent in causing the appeal to be transequity to a suit on such judgment, or to en
ferred cannot affect the question of jurisdicforce rights secured thereunder. Marx V. tion. Fore, 51 Mo. 70; Napton v. Leaton, 71 Mo.
Original proceeding in mandamus brought 367; Bradley v. Welch, 100 Mo. 268, 12 S.
by the state, upon the relation of James R. W. 911. But the judgment, as has been
Waddell, against J. L. Smith and others, as seen, was valid upon the face of the proceed
judges of the Kansas City court of appeals. ings, and no direct attack is made upon it
Granted. here. The attempt is to defeat its force by an indirect and collateral attack, which we M. W. Huff and Brown & Pratt, for rethink cannot be done. Whether the appear
lator. Lander & Johnson, for respondents. ances were authorized or not, was a question upon which the court had the power to pass, BRACE, C. J. This is a proceeding in and in fact necessarily did pass, in finding mandamus. . The relator is the superintendthat the parties appeared. The finding is ent of the insurance department of the state of Missouri. The respondents are the erwards the alternative writ herein was judges of the Kansas City court of appeals. sued out, and served on the judges of said The question arises upon a demurrer to the court of appeals, respondents. On this state respondents' return to the alternative writ. of facts, substantially set out in the return, The facts disclosed by the pleadings are that the respondents contend that they ought not on the 28th of September, 1893, judgment to be required to, and cannot, transfer said was rendered in the circuit court of Linn cause to this court. county in the case of Lillian N. Hannum, It may be conceded that the proceedings of plaintiff, against the National Temperance the court of appeals in affirming the judgRelief Union, defendant, in favor of said ment in the cause aforesaid were entirely plaintiff, for the sum of $1,070.08. On the regular, and in accordance with the rules 1st day of March, 1894, an appeal from that and practice of that court; but what does judgment was granted defendant to the this amount to, unless the court had power Kansas City court of appeals, with leave to to take such proceedings? It is not disfile bill of exceptions at any time prior to puted that upon the rendition of the judgthe 15th day of July, 1894. Said bill of ex- ment in the Buchanan circuit court, on the ceptions was filed on the 28th day of June, 4th of August, 1894, dissolving the defend1894. On the 4th of August, 1894, in a pro- ant company in the cause appealed, and ceeding instituted in the circuit court of declaring it insolvent, the assets of said Buchanan county by the relator, as super- company vested absolutely in the relator, intendent as aforesaid, against the said Na- as superintendent of the insurance departtional Temperance Relief Union, defendant, ment of the state, whose duty it was to take the said defendant was adjudged to be in- immediate possession of the same, and in solvent, and by the decree of said court en- his own name, as such superintendent, to joined from further carrying on business in maintain and defend all actions in the courts this state, the corporation dissolved, and the “relating to such company, its assets, liabilititle to its assets at once vested in the re- ties, and business.” 2 Rev. St. 1889, SS 5944, lator, as superintendent as aforesaid, with 5945. Thereafter the appeal which was then directions to wind up its affairs under the pending in the Kansas City court of eals statute and the further orders of said court. could only be prosecuted by the relator in On the 15th of September, 1894, there was his official capacity. The appellant having filed in said court of appeals a duly-certified died by virtue of that decree, the cause copy of said judgment of the Linn circuit could not progress at all until its proper repcourt, in the cause appealed as aforesaid, resentative was substituted in the action. under the provisions of section 2253, Rev. St. The moment that substitution was attempt1889. Afterwards, at the March term, 1895, ed, the fact was disclosed that the issues in of said court of appeals, the plaintiff in said the cause thereafter to be determined were cause (in pursuance of notice served upon in a case in which a "state officer is a said defendant's attorneys that such a mo- party," and in which said court of appeals tion would be presented to said court on the had no jurisdiction; the jurisdiction to try 4th day of March, of said term) filed his mo- and determine the same being vested in this tion to affirm the judgment, under section court by the constitution. Const. art. 6, § 2252, on the ground that defendant had not 12; Amend. 1884, $ 5. The only power the prosecuted its appeal. Afterwards, on the court of appeals had over the case after 8th day of March, 1895, the relator filed his the rendition of the decree in the Buchanan motion to be substituted as party appellant circuit court was to permit the superintendand defendant in said cause, by virtue of the ent of the insurance department to be subdecree of the Buchanan circuit court afore- stituted as a party appellant therein, and said; also, his motion to transfer said cause transfer the cause to this court, or to transto the supreme court, because a state officer fer it without such substitution. It is no is a party to said cause. Afterwards, during answer to this to say that that officer was said term, and on the 1st day of April, 1895, not diligent in bringing the condition of the these several motions having been consid- case to the notice of the court of appeals ered by said court, the plaintiff's motion to more promptly than was done. The appeal affirm the judgment was sustained, and the could not have been prosecuted in that relator's motions to be substituted as prayed court, and we cannot see how his laches, if for, and to transfer the cause to this court, any, could confer jurisdiction upon that were overruled. Thereupon the relator filed court to dispose of the case by affirming the his motion for rehearing, which was also judgment of the court below, as was done. overruled, and the judgment of the circuit The proceedings of that court in this behalf court affirmed. Afterwards, on the 24th day were coram non judice. The case stands of May, 1895, the mandate of said court of in that court now as if nothing had been appeals affirming said judgment was duly done since the appeal was perfected. The issued to the clerk of the circuit court of case being there, and the jurisdiction to deLinn county, and filed in his office on the 1st termine it here, it should be immediately day of June, 1895; and on the 17th of June, transferred to this court. The peremptory 1895, the said court of appeals finally ad- writ prayed for will therefore be granted. journed said March term of said court. Aft- All concur.