Audsley v. Hale

• Decision Date: 07 April 1924
• Docket Number: No. 23300.,23300.
• Citation: 261 S.W. 117,303 Mo. 451
• Parties: AUDSLEY v. HALE et al.
• Court: Missouri Supreme Court

261 S.W. 117

303 Mo. 451

AUDSLEY v. HALE et al.

No. 23300.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Motion for Rehearing Overruled April 7, 1924.

Error to Circuit Court, Carroll County; Ralph Hughes, Judge.

Bill by William A. Audsley against Marjorie Hale and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. G. Hale for plaintiffs in error.

Lazier & Morris and Conkling & Withers, ail of Carrollton, for defendant in error.

LINDSAY, J.

The plaintiffs in error were defendants, with many others, in a suit brought by Audsley as plaintiff, to quiet title to certain lands situated in Carroll county. There were about 200 defendants, and some land involved other than the land wherein it is contended plaintiffs in error have an interest not determinable at that time, as the children of Lelia Hale, wife of John G. Hale, under the will of Charles Sterne, deceased. The land in this suit in which it was alleged plaintiffs in error claim or might claim an interest through the will of Charles Sterne, deceased, was 320 acres. Charles Sterne died about the year 1874, and his will was construed in Hale v. Audsley, 122 Mo. 316, 26 S. W. 963. It was there shown that. John B. Hale had an undivided one-half interest in the 320 acres of land mentioned, and that Charles Sterne was the owner at the time of his death of the remaining undivided one-half interest, having bought a one-sixth interest after making his will, but it was held that by the fifth clause of his will Charles Sterne had given to Lelia Hale, designated in the will as Leila Henry Herndon, the undivided one-third interest in said land owned by him before making his will, and by the third clause had given the undivided one-sixth interest therein acquired by him after making his said will to her and the heirs of her body. Said will further provided that, should said Lelia Hale die without bodily heirs, said real estate should go to the nephews and nieces of the testator. The nephews and nieces of Charles Sterne, deceased, were made defendants in the suit to quiet title. Other proceedings, and the course of events as gathered from the respective abstracts and statements, are as follows:

In 1894 said John B. Hale instituted a suit to ascertain and declare the interests of the parties, and for the partition of said 320 acres of land, and it appears some other land, and joined as defendants therein said Delia Hale and her husband, John C. Hale, and their daughter, plaintiff in error Marjorie Hale, then a minor, and also joined the nephews and nieces of Charles Sterne, deceased. This was before the birth of plaintiff in error Mary Brent Hale, which occurred in 1899. A guardian ad litem was appointed for Marjorie Hale, and an answer in her behalf was filed. A decree in partition was rendered, and commissioners were appointed, who set off 160 acres of the 320 acres of land to John B. Hale, and 80 acres of it to Lelia Hale, and reported the remaining 80 acres of this 320 and another tract as being not susceptible of partition in kind without prejudice, and recommended the sale thereof and payment of the proceeds to Lelia Hale, "to have and hold the greater part thereof for her natural life," and after her death the same to vest in the heirs of her body surviving, or, if none surviving, to the defendants nephews and nieces of Charles Sterne, deceased. A sale of the remaining land was ordered, and was made, and Lelia Hale became the purchaser. The proceeds of the sale (amount not stated) less the costs charged to Lelia Hale were ordered to be paid to her for her use during her natural life, and after her death the same to go and vest absolutely in Marjorie Hale and other heirs of the body of Lelia Hale, should she have heirs of her body living at the time of her death; otherwise, to vest absolutely in the other remaindermen, nephews and nieces of Charles Sterne, deceased. It was also ordered in this partition suit that Lelia Hale execute a bond in the sum of $400.00 to the remaindermen, conditioned that said Lelia Hale, her executors and administrators, would account for and pay over the funds she should receive as life tenant at the termination of her life interest therein. After the termination of the partition proceedings, in 1895, John B. Hale and Lelia Hale and her husband, John G. Hale, executed warranty deeds to the land involved, whereby all their interests, in part by direct conveyance and in part through mesne conveyances, were conveyed to Audsley.

In July, 1918, Audsley, as plaintiff, brought the suit to quiet title. Personal service was had in that suit upon Marjorie Hale and Mary Brent Hale on August 12, 1918, at their residence in Chicago, Ill., for their appearance on the third Monday in September, 1918. There is no claim of irregularity in respect to this. Service upon the other defendants was by publication. Marjorie Hale was at the time over the age of 21 years, and Mary Brent Hale was 19 years of age. Mary Brent Hale did not appear to the summons in the suit to quiet title. Marjorie Hale appeared and filed a plea to the jurisdiction of the court, alleging that her appearance was special, and for that purpose alone. She set up the provisions of the will of Charles Sterne, deceased, the interest thereunder of her mother, Lelia Hale, in said real estate, averring that her mother took only a life estate in the land and interests devised to her by the will, and averred that she, in common with any other children surviving her said mother, "will be entitled to lay claim hi fee simple to any portion of said real estate not disposed of by her mother, according to the provisions of the will of Charles Sterne." She averred that, having no definite or certain right or interest in said real estate, she was without power to assert a claim thereto; that the court was without jurisdiction to enter any decree in adjudication of her right to any portion of said real estate, or to require her to submit to an adjudication thereof and that an adjudication thereof during the lifetime of her mother would be a deprival of property without due process Of law, and in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States; and she prayed the judgment of the court as to whether she could be required to answer the petition. Audsley, the plaintiff below, filed a reply to the special plea, and set forth the provisions of the will of Charles Sterne. He also pleaded the making of a contract in 1894 for the purchase by him of said land from John 3. Hale and Lelia Hale (the contract referred to in Hale v. Audsley, 122 Mo. 310, 23 S. W. 963), the discovery by John B. Hale and Lelia Hale that the latter did not own the fee in said one-sixth interest in said land, and set forth the bringing of the partition suit thereafter, and the partition sale and conveyance had, and hereinbefore referred to, and asked that the plea to the jurisdiction be dismissed, and that the court proceed to trial and judgment. The court held it had jurisdiction to hear and determine the rights of all of the defendants, and overruled the plea of Marjorie Hale, and proceeded to judgment in favor of the plaintiff below. Marjorie Hale filed no other pleading. No exceptions were saved, no motion in arrest or for a new trial were filed. The judgment was rendered on January 21, 1919. On the 20th day of September, 1920, plaintiff in error Mary Brent Hale filed her motion asking that the judgment against her be set aside and vacated.

The affidavit of Mary Brent Hale made and filed with said motion and made part thereof showed that she reached the age of 21 years on July 8, 1920. The defendant below filed his motion to strike out the motion to vacate for want of proper notice, lack of jurisdiction, and as not stating sufficient facts to warrant the relief asked. His motion was overruled. The motion of Mary Brent Hale was then heard, and was overruled on January 14, 1921. The writ of error herein was brought on July 1, 1921, was returnable to the October term 1921, and return was filed October 3, 1921. On September 12, 1923, the defendant in error filed his motion, submitted with the cause, to dismiss the writ of error, upon two grounds.

The first ground stated in the motion to dismiss the writ herein is that plaintiff in error failed to cause notice thereof in writing to be served upon defendant in error or his attorneys of record 20 days before the return day of the writ, as required by section 1502, R. S. 1919. It appears that beginning about the 21st day of June, 1921, and shortly before the writ was sued out, a correspondence by letter was entered into between the attorneys for plaintiffs in error, and one of the attorneys for defendant in error, by which the latter was advised of the former's intention to sue out the writ; and after the issuance of the writ, in August, 1921, letters were exchanged between the attorneys discussing what portions of the record the clerk should include in the return, and suggestions on that point were made by the attorney for defendant in error. It appears also that on September 28, 1921, a stipulation was signed wherein it was recited "that notice in connection with suing out of writ of error for the review of the judgment or decree in this cause is acknowledged." The return day was October 11, 1921.

At the October term, 1922, of this court, a stipulation was filed by the parties for a continuance of the cause until the April term, 1923, and for leave for defendant in error to file brief on or before March 15, 1923, and the cause was so continued. At the April term, 1923, the parties filed their stipulation to continue to the October term, 1923, and it was so ordered. The motion to dismiss the writ was filed September 12, 1923. Section 1502, R. S. 1919, requires notice to be served 20 days before the return day of the writ. It has this further provision:

"If such notice be not served, the writ shall be...