The State ex rel. Festor v. Staed
| Decision Date | 15 March 1898 |
| Citation | 45 S.W. 50,143 Mo. 248 |
| Parties | The State ex rel. Festor et al. v. Staed et al., Appellants |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Judgment of circuit court affirmed.
Laughlin & Tansey for appellants.
We contend that the sheriff's offer to put Festor into possession of an undivided four fifths still leaving George Meglitsch on the premises, and his father, Anton Meglitsch with him, if he desired to have him there, and the father desired to remain with his infant child was all that was required under the execution, the plaintiffs in the present case and George Meglitsch being tenants in common. (2) That the court erred in refusing to give the second declaration of law offered by defendants is plain from the standpoint that the father, as the natural guardian of the child, had a right to be on the premises with his child, and that the child as cotenant had the right to bring on the premises his father or any one else, to care for him, so long as those he brought upon the premises did not interfere with the possession of the undivided four fifths of his cotenants. Neither tenant could have exclusive possession as against the other, but any one could delegate to a third party to hold for him temporarily, or for a stated period, as he so desired, and his cotenants could have no right to complain. This was all that was done when the father of George Meglitsch, one of the cotenants remained there, supposably at the solicitation of his infant child, to care for him. This doctrine is laid down, without equivocation, in the case of McGarrell v Murphy, 1 Hilt. (N. Y.) 132. (3) To say that an infant of three years can not invite onto a piece of property or have on property in which he is cotenant, a nurse to look after him, a guardian or parent to care for him, is to sever all the rights and duties existing between parent and child, guardian and ward, and to absolutely overturn the doctrine of domestic relations, and to give a new version to the co-equal rights of tenants in common.
Lubke & Muench for respondents.
We do not now contend, and never asserted, that under this writ the sheriff was authorized or commanded to oust the cotenant. We do contend that he was bound to give relators their possession as to the man who wrongfully withheld that possession from them. We concede the right of the cotenant to remain in, and specially directed the sheriff not to disturb him. That, however, did not justify the sheriff in refusing to obey the writ, and indulging in fanciful notions as to his duties toward minors who are no parties to the controversy.
This is an action on the official bond of the sheriff of the city of St. Louis to the use of relators for failure to execute a writ of restitution and for false return and failure to make return as to judgment for costs. Judgment was obtained by plaintiffs in the circuit court of the city of St. Louis for the penalty of the bond to be satisfied by the damages assessed at $ 230.40 on first breach, one cent on second and one cent of the third breach. An appeal was prosecuted to the St. Louis Court of Appeals and the judgment of the circuit court was reversed and the cause remanded by a majority of the judges of that court, Judge Rombauer dissenting. By reason of his dissent the cause was ordered certified to this court. On the trial in the circuit court, a jury was waived and the cause submitted to Judge Jacob Klein, one of the judges of said court, who rendered judgment for plaintiffs. This is an appeal in an action at law. The finding of facts where there is substantial evidence upon which to base it, is conclusive upon this court. In rendering his judgment Judge Klein filed the following opinion in writing:
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