Frederick Meffert Stripe v. Meffert

Citation229 S.W. 762,287 Mo. 366
PartiesFREDERICK MEFFERT STRIPE, A Minor, by JAMES A. SHANNON, His Guardian, v. ANNA MEFFERT, MARTIN E. LAWSON and SILVIA C. BARRICK, Appellants
Decision Date09 April 1921
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.

Reversed.

Lathrop Morrow, Fox & Moore and George W. Day for appellants.

(1) The case was tried in the court below as one in equity; all parties are bound by that theory. Harwood v. Toms, 130 Mo. 225; Roselle v. Beckmeir, 134 Mo. 380. (2) The motion for new trial was filed in time. The cases which hold that the time for filing a motion for new trial should be reckoned from the date if the return of the verdict and not from the date of the judgment are cases in which the return of the verdict marked the close of the trial. (3) The judgment here can be sustained only upon a finding that there is in the record sufficient evidence showing there was a marriage between Dr. Joseph F. Meffert and Anna Marie Stripe which the law deems null. R. S. 1909, sec. 342. (4) Unless at least one of the parties to an alleged common-law marriage enters it in good faith, believing the other party to it competent to contract marriage, the issue of the cohabitation of the parties is not legitimate. Green v. Green, 126 Mo. 17; Nelson v. Jones, 245 Mo. 579. (5) Both Dr. Meffert and Mrs. Stripe knew that Mrs Stripe was the lawful wife of another, when they assumed the relation testified to by her. Good faith was, therefore, lacking in both of them; the relation was meretricious and not that of a marriage deemed null in law. (6) Every child born in wedlock is presumed to be legitimate. Proof to the contrary must show impossibility of access or of procreation by the husband. Johnson v. Johnson, 30 Mo. 72; Drake v. Hosp. Assn. 266 Mo. 1.

Gamble, Kennard & Trusty and Marley & Reed for respondent.

(1) This case came on in due course for trial, as a jury case, and although appellants insisted that it was an equity case not triable by a jury, and objected to a jury trial, the respondent was equally insistent that it was a jury case and insisted upon a trial to a jury. The court took the view of the respondent and tried the case as a jury case; and all action of the court after the return of the verdict by the jury was influenced and induced by the appellants and not by the respondent. Respondent desires to raise the point that as to him there is nothing but the record proper before this court for its consideration. Neither the petition nor any of the answers claim as to respondent, any equitable rights nor invokes the exercise of the powers of a chancellor. That in fact the petition and answers clearly show that the action was an action at law triable to a jury. Kline v. Greeschner, 219 S.W. 652; Hays v. McLaughlin, 217 S.W. 263; Newbrough v. Moore, 202 S.W. 549; Hunter v. Moore, 202 S.W. 545; Koehler v. Rowland, 275 Mo. 581, 205 S.W. 219; Tracey v. Coppage, 213 S.W. 38; Dowd v. Bond, 199 S.W. 954; Bacon v. Theiss, 208 S.W. 254; Thompson v. Stillwell, 253 Mo. 89; Lee v. Conran, 213 Mo. 404; Wimpey v. Lawrence, 208 S.W. 58; Tolar v. Edwards, 249 Mo. 158; Minor v. Burton, 228 Mo. 563; Miller v. Lloyd, 204 S.W. 258; Brooks v. Gaffin, 192 Mo. 228; Hauser v. Murray, 256 Mo. 84; Minicum v. Solar, 183 S.W. 1037; Brook v. Roberts, 195 S.W. 1021; Coulson v. Le Plant, 196 S.W. 1144; Brandt v. Brents, 177 S.W. 377; McLarty v. Griggs, 222 S.W. 391; Brooks v. Roberts, 220 S.W. 11; St. Louis Union Trust Co. v. Hill, 223 S.W. 435; Mooneyham v. Wynatt, 222 S.W. 451. (2) Sec. 342, R. S. 1909, should be liberally construed in favor of the child. The strict requirement being only as to its paternity. Watt v. Owens, 62 Wis. 512; Blythe v. Byers, 19 L. R. A. 40; In re Shipp, 168 Cal. 641; Brown v. Legion of Honor, 78 N.W. 73; Morin v. Holiday, 30 Ind.App. 201. Children are unconscious of the marriage and the criminality thereof does not affect them, nor is it to be considered when passing upon their claim to legitimacy. Dyer v. Brannock, 66 Mo. 404; Brewer v. Bloucher, 14 Pet. 178; Stones v. Keeling, 5 Call. (Va.) 143; Heckert v. Hile, 90 Va. 391; Leonard v. Braswell, 99 Ky. 528; Wright v. Lore, 12 Ohio St. 619; Harris v. Harris, 85 Ky. 49; Hartwell v. Jackson, 7 Tex. 579. The statute should be construed to carry out its humane purpose. Turnmier v. Mayes, 121 Tenn. 45; In re Jessupp, 81 Cal. 408; Christopher v. Munger, 61 Fla. 513; Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 80; Buchanan v. Harvey, 35 Mo. 276; Nelson v. Jones, 245 Mo. 597; Evatt v. Miller, 114 Ark. 84; Mund v. Rebanme, 51 Colo. 134; Leonard v. Brasswell, 99 Ky. 533; Hutchins v. Kimmell, 31 Mich. 132; Morris v. Williams, 39 Ohio St. 557; Watts v. Owens, 62 Wis. 512. (3) The verdict marked the end of the trial, as it settled all the issues of fact and left the court no alternative except to enter judgment for plaintiff or grant a new trial; and defendant's failure to file such motion within four days after verdict means that the appeal brings nothing here for review except the record proper, and as to that no error is assigned. R. S. 1909, secs. 1988, 1989, 1990; Green v. Whaley, 271 Mo. 636; DeSoto v. Ins. Co., 102 Mo.App. 1; Hall v. Mullanphy, 16 Mo.App. 454; Cockrell v. McIntyre, 161 Mo. 59; Waddington v. Lane, 220 Mo. 387; Young v. Downey, 150 Mo. 317; City of St. Louis v. Boyce, 129 Mo.App. 443; Brubaker v. Brubaker, 74 Kan. 220, 86 P. 455; Spalding v. Mayhill, 27 Mo. 377; Shipp v. Snyder, 121 Mo. 155.

SMALL, C. Brown and Ragland, CC., concur.

OPINION

SMALL, C.

Suit to quiet title to real estate in Jackson and Clay Counties. Petition is in the conventional form, claiming that plaintiff owns the entire fee title in the property sued for. No equitable title alleged, nor equitable relief prayed for on face of petition.

The answer of defendant Anna Meffert was a general denial. The answer of defendant Lawson, besides a general denial, averred that neither plaintiff nor defendant Sylvia C. Barrick had any interest, but that said Lawson, as executor of the last will of Joseph F. Meffert, deceased, under said will, holds the entire feesimple title for his co-defendant, Anna Meffert. Defendant Sylvia C. Barrick's answer was to the same purport as the answer of defendant Lawson.

After the jury was sworn it appeared from the opening statement of plaintiff's counsel that both parties claimed under said Joseph F. Meffert, as a common source of title. That plaintiff claimed he was the son of said Meffert, and was born of his marriage with Mrs. Marie Stripe, while said Mrs. Stripe was the wife of William H. Stripe, but was, nevertheless, his legitimate child under Section 342, Revised Statutes 1909.

Defendants thereupon objected to trying the case before a jury, because they "don't try equitable matters." The court overruled defendants' objection, but submitted to the jury the following special questions, which the jury answered in the affirmative, as follows:

"Question No. 1. Was there a marriage on or about September 3, 1914, between Joseph F. Meffert and Anna Marie Stripe?

"We, the jury, answer the foregoing question, Yes.

"A. L. Williams, foreman.

"Question No. 2. Is Frederick Meffert Stripe the issue of said marriage?

"Yes.

"A. L. Williams, foreman."

Upon the coming in of the verdict, the court made the following entry on the record:

"And now it appearing to the court that there are further issues in this cause, the said jury is discharged from any further consideration of the cause, and this cause is continued until tomorrow morning at 9:30 a. m."

It appears from the evidence before the jury, that plaintiff was born October 6, 1915. That his mother was about 33 years old in the early spring of 1913, when she first met Dr. Joseph F Meffert, who was and for many years had been a practicing physician in Kansas City, and before coming to Kansas City, in Liberty, Missouri. She was then living with her husband, W. H. Stripe, a carpenter and contractor, who was doing work for Dr. Meffert, who was a man of some means and the owner of a number of houses in Kansas City. At the time, the Stripes had two little daughters aged respectively about four and eight years. They lived at 27th and Indiana Avenue. Dr. Meffert resided at 1622 Prospect Avenue. He was divorced from his wife in 1890, when they lived at Liberty. His former wife and their daughter and only child, Anna Meffert, lived at Liberty. The Stripes were married in New Jersey, January 1, 1903. Mrs. Stripe had been left some property when her father died. She was then sixteen years old. She never attended the public schools, but was educated at private schools, and was also a graduate of College, one of the highest class colleges for young women in the country. Her husband, Stripe, was interested with his brothers, one of whom was her guardian, in a manufacturing establishment, and invested and lost her inheritance in the business. They then moved west and had been in Kansas City for several years before she met Doctor Meffert. They became enamoured of each other at their first meeting in the early spring of 1913. Thereafter, he made love to her, and until she went to live with the doctor on September 3, 1914, they often met clandestinely and without her husband's knowledge. This happened two or three times a week. She was in love with Dr. Meffert as much as he was with her. She did not tell her husband of these meetings with the doctor, because "I knew what a disposition he had." She also knew it was wrong, because she was married to Stripe. Over defendants' objection that she was incompetent to testify to her agreement with said Meffert, because he was dead and the plaintiff claimed through and under said agreement, she testified, as...

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