Beckner v. McLinn

• Decision Date: 02 December 1891
• Parties: BECKNER v. McLINN et al.
• Court: Missouri Supreme Court

17 S.W. 819

107 Mo. 277

BECKNER v. McLINN et al.

Supreme Court of Missouri, Division No. 2.

December 2, 1891.

RES JUDICATA — MISNOMER — APPEARANCE.

Where the order of publication of summons against a non-resident gives her name as Mary E. B., instead of Mary A. B., and she appears by her attorney, and from the judgment rendered takes no appeal, she is bound thereby.

Appeal from circuit court, Adair county; ANDREW ELLISON, Judge.

Ejectment by Horace B. Beckner against Joseph McLinn and Mary Ann Byers. Judgment for plaintiff. Defendants appeal. Affirmed.

W. C. Hollister, for appellants. L. F. Cottey, for respondent.

GANTT, J.

Jacob Byers died about the month of January, 1878, the owner of the lands the subject of this action of ejectment. He was an old man, and had been married to the defendant Mary Ann Byers about two years at the time of his death, she being his second wife. He was not in debt, and, in addition to the land, left a small personal estate, which was duly administered in Knox county. Many years ago Jacob Byers married his first wife, and by her raised a large family of children, who survived him as his heirs. His first wife was dead, and all of his children were of age long prior to his marriage with defendant Mary Ann. There were no children born of the marriage with defendant Mary. The names of his children and heirs at law by his first wife were as follows: Hannah L. Campbell (formerly Byers) and her husband, Mathew Campbell; William Byers; Silas C. Byers; Euphonia L. Lease (formerly Byers) and her husband, John Lease; Julia A. Nicewarner, a widow, (formerly Julia A. Byers;) Amanda Bardett (formerly Byers) and her husband, Joseph Bardett; and Rebecca A. Byers, — the last two named being grandchildren of the said Jacob Byers. Some time within a year after the death of said Byers the defendant Mary abandoned the home of her deceased husband, leased it to defendant McLinn, and has never lived upon nor occupied it as a homestead since. For about five years after the death of her husband she lived in Scotland county, Mo. She then moved to the state of Nevada, and lived there about two years. In 1885 she returned to Scotland county, Mo., where she has since lived. On the 26th day of March, 1884, Hannah L. Campbell, (formerly Byers,) as a daughter and heir at law of Jacob Byers, deceased, together with her husband, Matthew Campbell, as plaintiffs, instituted a suit in partition against the other heirs and the widow of Jacob Byers, deceased, in the circuit court of Knox county, Mo., for the partition of the lands described in plaintiff's petition. Said petition for partition set forth the interests of the children and heirs of said deceased in said lands, subject to the dower interest of the widow of said Jacob Byers, deceased. Defendant Mary was made a defendant in said partition suit, and the petition in said partition suit alleged that she was entitled to dower in the lands therein described. In said partition suit the defendant Mary was designated as "Mary E. Byers, widow of Jacob Byers, deceased," and by that name a summons was issued against her, directed to the sheriff of Knox county, Mo., who returned the same, as to this defendant, "Not found in my county." Whereupon the plaintiff in said partition suit caused another summons to issue out of the office of the clerk of the circuit court of Knox county, Mo., and directed the same to the sheriff of Scotland county, Mo., who soon thereafter returned said summons to the clerk of the circuit court of Knox county, Mo., as to this defendant, "Not found in my county," with the further information "that Mary E. Byers was living in the state of Nevada, address not known." Afterwards, at the June term of the circuit court of Knox county, Mo., for the year 1884, the term to which the non est was returned by the sheriff of Knox and Scotland counties as to this defendant, the court first being satisfied that process could not be served on said defendant, and that she was a non-resident of the state of Missouri, made an order of publication against said defendant in said partition suit. Said order of publication was judicially made by the court in term-time and in open court. Proof of said publication was made at the following December term of said court. At the June term, 1885, of the Knox circuit court, judgment of partition was duly rendered in said case, and ordered that the land should be sold at the next regular term, it first being shown by testimony that the land was not susceptible of division. The defendant Mary, in addition to the order of publication, had personal knowledge of the pendency of said partition suit. She admits in her testimony that she received a letter from Mr. McMurry informing her of said suit, dated April 8, 1885, and that she then wrote to her attorney in regard to the matter at Edina, Mo. This was 60 days before judgment of partition was rendered. At the December term, 1885, of said court, said lands were sold to the plaintiff herein for the price and sum of $2,142 by the sheriff. The defendant Mary was present at said sale by her attorney, made no objection to the sale, but did state that she would "file a motion to have her homestead in it [the land] set off to her in money from the sale, forthwith." The sale was made December 12, 1885. On the second day after said sale, and before the sheriff had filed his report, the defendant Mary came into said court with the following motion: "In the circuit court of Knox county, Missouri. December term, 1885. Hannah L. Campbell and her husband, Mathew Campbell, Plaintiffs, vs. William Byers, Silas C. Byers, Euphonia L. Lease and her husband, John Lease, Julia N. Nicewarner, Amanda Bardett and her husband, Joseph Bardett, Rebecca A. Byers, and Mary E. Byers, Defendants. Now, at this 14th day of December, 1885, and by leave of court first taken, files this her motion in the above-entitled case, and states and represents that she is the same defendant Mary E. Byers named in the above-entitled petition, and states to the court that she is the widow of said Jacob Byers, deceased, named in plaintiff's petition in the above-entitled cause; that said Jacob Byers departed this life about the month of March, 1878, in Knox county, Mo., as stated in the petition in said cause; that, as such widow, at the time of the death of said deceased she occupied the lands described in the petition as her homestead, and had for a long time prior to the death of her said husband lived with him thereon as his wife, and as such wife and widow, in addition to her dower rights referred to in said petition, is entitled to a homestead in the lands described in the petition for partition in said cause; that she now asks this court to ascertain the present worth of her homestead in said lands in excess of and in connection with her dower right, and order that the same be paid over to her by the sheriff of Knox county, Mo.; that there are no minor children; and that her age is fifty-two years. McQUOID & CLANCY, Attys. for Mary E. Byers, Widow." Afterwards, at said December term, 1885, of said court, the sheriff filed his report of the sale of said lands to plaintiff, which report was approved at said term, and, at the instance of the said widow, said cause was continued without any order of distribution being made until the June term of said court, 1886. At the June term, 1886, the said widow, Mary, defendant herein, was present in court in person and by her attorneys, and testified as a witness in her own behalf upon the issue made by her motion for the court to ascertain the present worth of her homestead in said lands in excess of and in connection with her dower right; and various other witnesses were sworn upon the trial on said motion, as to whether or not she had abandoned said homestead since the death of Jacob Byers. The question of her abandonment of such homestead became and was the issue then tried. The court thereupon rendered final judgment of distribution in said partition suit, as follows: "Now, at this day, this cause coming on to be heard, come the parties by their respective attorneys, and the cause is submitted to the court upon the motion of Mary E. Byers, widow of Jacob Byers, deceased, asking that homestead be paid to her out of the proceeds of said land. The court, being fully advised, and having heard evidence and argument of counsel upon said motion, overrules the same; and the court further finds that said Mary E. Byers, as such widow, is entitled to a dower interest out of the proceeds of sale of lands; that the land sold for $2,142.00; and that the net proceeds, after deducting the costs and expenses of said sale, are $1,954.98; and the court further finds that said Mary E. Byers, widow as aforesaid, is 61 years old; and that the present value of her dower in the proceeds of the sale of said real estate, computed according to what is called the `Northampton Tables,' is $291.25, and the sheriff is ordered to pay said Mary E. Byers that amount of money as her dower interest; and the sheriff is further ordered...