Anderson v. Anderson

• Decision Date: 31 October 1856
• Citation: 23 Mo. 379
• Parties: ANDERSON, Respondent, v. ANDERSON et al., Appellants.
• Court: Missouri Supreme Court

23 Mo. 379

ANDERSON, Respondent,

v.ANDERSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. Where in a suit for partition there has been no service of a copy of the petition with the requisite notice upon two of the defendants, and there is filed an instrument in the following form, signed by said two defendants: “October 6th, 1854. We wish to waive the notice of the division of the real estate belonging to the heirs of R. T. A., deceased. [[[[Signed] S. C., Ma.:” Held, that this does not amount to a service on them or an appearance by them, and that a judgment by default against them would be irregular and should be set aside.

Appeal from Lincoln Circuit Court.

Broadhead and Hunt, for appellants.

I. The parties defendant were not in court when the judgment was rendered. Two of them were not served with process. The memorandum attached to the petition is no appearance in court. (Sess. Acts, 1847, p. 106; R. C. 1845, p. 804-5.) There are only two modes of commencing a suit under the practice acts of 1845 and 1849; first, by the voluntary appearance of the party; second, by filing a declaration or petition and suing out a summons. By the act of 1847, the latter mode may be adopted, but the time of service (which, by the partition law, is four weeks,) is not changed. In this case there was no voluntary appearance of two of them, and the others were not served in time, as appears by the judgment of partition. A copy of the petition only was delivered to Harrison Anderson, without a copy of the writ, or any notice when or where it would be presented. (R. C. 1845, p. 805; Practice Act, 1849, art. 5, sec. 1, 4; Waddingham et al. v. City of St. Louis, 14 Mo. 195.)

II. The first judgment by which the rights of the parties was found, was merely interlocutory; (McMurtry v. Glascock, 20 Mo. 432; 8 Mo. 53;) and the motion being made before the report of the commissioners was acted on, ought to have been sustained and leave to plead granted.

III. The judgment of the court was manifestly erroneous in giving to the widow one-half the land. There was no averment or proof that she made her election as provided by the 7th section of the dower law, and she was therefore only entitled to dower under the first section of that law, one-third during her life. (R. C. 1845, p. 430-1.)

A. H. Buckner, for respondent.RYLAND, Judge, delivered the opinion of the court.

Susannah Anderson filed her petition in the office of the clerk of the Circuit Court of Lincoln county, on the 21st of August, 1854, against Jeremiah Anderson and others, as heirs of Ransom T. Anderson, deceased. The petitioner states that she is the lawful widow of said Ransom T. Anderson, and the defendant, Jeremiah Anderson, the father, and James Anderson, Harrison Anderson, Sarah Cochran, Julia Williams, and Mary Anderson, his brothers and sisters; that said Ransom died intestate, without leaving any child or children living; that the petitioner, as his widow, is entitled to one equal undivided half of the real estate of which the said Ransom died seized, and that the above named persons, as father and brothers and sisters, are entitled to the other half of said real estate--that is, the widow is entitled to one-half, and each of the others to one-sixth of the other half; that said Ransom died seized of about 485 acres of land, which is specifically set forth and described in said petition. The petitioner avers that the debts against the estate of said Ransom have all been paid, and that no reason exists why any partition of said lands should not be made according to the rights of the parties, and “asks that each of said defendants be duly notified of this suit, and that the court will adjudge partition of said lands among said parties according to their respective rights, and appoint commissioners to make said partition.”

On this petition a summons was issued dated August 21, 1854, returnable to the first day of the next term of the Circuit Court of said county, which was to begin and be held on the first Monday in October next ensuing, against Jeremiah Anderson, James Anderson, Harrison Anderson, James Williams and Julia Williams his wife, and Mary Anderson. The name of Sarah Cochran does not appear in this summons. The sheriff made the following return on said summons, viz: “Executed the within writ in Lincoln county, on Jeremiah Anderson, James Anderson, James Williams, Julia Williams, and Harrison Anderson, by reading the same and a copy of the petition hereunto attached in each of their hearing, and delivered said petition to Harrison Anderson, this...