186 S.W. 1004 (Mo. 1916), Gruender v. Frank

Citation:186 S.W. 1004, 267 Mo. 713
Opinion Judge:WILLIAMS, C. -- Per Curiam.
Party Name:AUGALA GRUENDER et al. v. ELIZABETH FRANK et al., Appellants
Attorney:Gove & Davidson and Pope & Lohman for appellants. Irwin & Peters and D. F. Calfee for respondents.
Judge Panel:WILLIAMS, C. Roy, C., concurs. Revelle, J., not sitting. The judgment is reversed and the cause remanded. Roy, C., concurs.
Case Date:May 31, 1916
Court:Supreme Court of Missouri
 
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Page 1004

186 S.W. 1004 (Mo. 1916)

267 Mo. 713

AUGALA GRUENDER et al.

v.

ELIZABETH FRANK et al., Appellants

Supreme Court of Missouri, Second Division

May 31, 1916

Appeal from Cole Circuit Court. -- Hon. John M. Williams, Judge.

Reversed and remanded.

Gove & Davidson and Pope & Lohman for appellants.

(1) The court erred in not giving the instructions asked by defendants in the nature of a demurrer to the evidence, for the reason that the petition is fatally defective in failing to allege that plaintiffs were interested in the disposition or devolution of the estate of deceased, and no evidence was given or offered to show such interest. Borland on Wills (Enlarged Ed.), sec. 74; R. S. 1909, sec. 555; State ex rel. v. McQuillin, 246 Mo. 689; Lilly v. Tobbein, 103 Mo. 477; Church v. Tobbein, 82 Mo. 418; Hans v. Holler, 165 Mo. 47; Stowe v. Stowe, 140 Mo. 594; Wells v. Wells, 144 Mo. 198; Kishman v. Scott, 166 Mo. 215; Vaile v. Sprague, 179 Mo. 393; Watson v. Anderson, 146 Mo. 333; Eddy v. Park, 31 Mo. 518; Stewart v. Coshon, 238 Mo. 662; Kelley's Probate Guide (4 Ed.), sec. 86, p. 74, ch. 10. (2) The petition fails to state facts sufficient to constitute a cause of action. Pier v. Heinrichhoffer, 52 Mo. 333; Scott v. Rombard, 67 Mo. 289; Christian v. Ins. Co., 143 Mo. 460; Chitty v. Railroad, 148 Mo. 64; Land v. Live Stock Co., 163 Mo. 342. (3) All interested parties must be before the court in a contested will case, otherwise the case will be dismissed. Eddy v. Park, 31 Mo. 518; Wells v. Wells, 144 Mo. 198; Kishman v. Scott, 166 Mo. 215; Vaile v. Sprague, 179 Mo. 393; Watson v. Anderson, 146 Mo. 333; Scott v. Rombard, 67 Mo. 289; Land v. Live Stock Co., 163 Mo. 342.

Irwin & Peters and D. F. Calfee for respondents.

(1) Proceedings in reference to contest of a will are proceedings in rem. The heirs at law and devisees are made nominal parties, but the proceeding is ex parte. Garvin's Admr. v. Williams, 50 Mo. 212; Vaile v. Sprague, 179 Mo. 396. In this suit plaintiffs do not seek to establish any right in themselves. The action is in the nature of a proceeding in rem and any question as to the interest or lack of interest of plaintiffs, relates only to their legal capacity, or incapacity, to sue. Any objection therefore, as to plaintiffs' supposed lack of interest, if such lack of interest appeared on the face of the petition, should have been taken by demurrer; and if it did not appear on the face of the petition, the question should have been raised by answer. Defendants having failed to raise the question by either answer or demurrer, the objection is waived. R. S. 1909, sec. 1804. Appellants contend that plaintiffs' lack of interest (or capacity to maintain the suit), if there was any lack of interest, appeared on the face of the petition; this issue could have been raised only by special demurrer, and appellants having failed to raise it in this manner, the question of plaintiffs' interest was not in issue and it was not necessary for plaintiffs to introduce any evidence as to such interest. Baxter v. Transit Co., 198 Mo. 1. Want of legal capacity to sue and the objection that the action is not brought in the name of the real party in interest is waived where the objection is not urged by demurrer where apparent on the face of the complaint and by answer where not so apparent. 31 Cyc. 737. (2) There was not a total failure to allege plaintiffs' interest; such interest was shown by the petition. The body of the petition states that Rev. Gruender left surviving him, as his heirs, certain persons, naming them. The caption shows that plaintiffs were the heirs at law of three of these persons, and the other one of the four was made a party defendant. A pleading must be construed as an entirety, including the caption. 31 Cyc. 83; McCloskey v. Strickland, 7 Iowa, 259. And especially, after verdict, resort may be had to the caption to show interest, or capacity, on the part of plaintiff, where by reasonable intendment a sufficient cause of action can be made out. State ex rel. v. Crow, 8 Mo.App. 596; 31 Cyc. 82; Goode v. Coal Co., 167 Mo.App. 173. If defendants desired that the averments of plaintiffs' petition should be made more definite and certain, the...

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