Beckner v. McLinn
| Decision Date | 02 December 1891 |
| Citation | 17 S.W. 819,107 Mo. 277 |
| Parties | Beckner v. McLinn et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. Andrew Ellison, Judge.
Affirmed.
W. C Hollister for appellants.
(1) The publication not being against Mrs. Byers by her true name is fatally defective. R. S., sec. 3496; 11 Mo. 408; 87 Mo. 315; 42 Mo. 489; 44 Mo. 252; 91 Mo. 377. (2) Though the record recites that due notice was given, yet the same may be contradicted by record recitals or papers on file. 88 Mo 411; 86 Mo. 366. Where the court has no jurisdiction over the subject-matter the process issued is void and all its acts are void. 89 Mo. 146; 22 Mo.App. 446. (3) The appearance of Mrs. Byers six months after the rendition of the judgment and after the sale and asking that her homestead be set off in money was not a waiver of the defective service by publication. Anderson v. Anderson, 23 Mo. 379. An appearance for the purpose of setting aside irregular judgments waives no rights. 31 Mo. 419; 36 Mo. 149; 58 Mo 242; 45 Mo. 289; Bank v. Rogers, 12 Minn. 529; Levan v. Irvin, 12 Rich. 31; Clark v. Bryan, 16 Md. 174; Gidden v. Packard, 28 Cal. 649. (4) "A widow entitled to a homestead estate in lands of her deceased husband is not precluded from claiming it by the fact, that dower has already been assigned to her out of the same lands and that she accepted it without then preferring her claim of homestead." 65 Mo. 343. (5) The court may, in ejectment brought for the premises by purchaser at the sale, cause the homestead to be assigned. Crisp v. Crisp, 86 Mo. 630.
L. F. Cottey for respondent.
(1) It is very clear that the circuit court of Knox county had jurisdiction of the partition proceedings; and that partition will be made where there is a right of homestead. Wright v. Dunning, 46 Ill. 271; Gragg v. Gragg, 65 Mo. 343; Rolf v. Timmermeister, 15 Mo.App. 249. (2) The homestead is a statutory right -- a strictly legal right, and may be sold with the other lands and the proceeds controlled by the court. Casebolt v. Donaldson, 67 Mo. 308. (3) Shortly after the death of her husband the widow leased the farm and went off, remaining away continuously for about eight years. This was an abandonment. Smith v. Bunn, 75 Mo. 559; Kaes v. Gross, 92 Mo. 647; Wright v. Dunning, 46 Ill. 271. (4) The suit in partition was against defendant as Mary E. Byers, and although her name may have been Mary A. Byers, the middle letter is no part of the name, and its insertion or absence makes no difference. State v. Martin, 10 Mo. 392; Phelps v. Evans, 64 Mo. 17; State v. Black, 12 Mo.App. 531; Steinman v. Strimple, 29 Mo.App. 478. The case of Skelton v. Sackett, 91 Mo. 377, cited by appellants, is not in point, because there the first name was "Quinces," which was published by the initial "Q." In the case at bar the first name was published in full as Mary. Moreover, in the Skelton case there was no appearance. The defendant Mary did appear in the partition suit. Her redress was in that proceeding, if she had any. It is too late to raise the point here in a collateral proceeding. Martin v. Barron, 37 Mo. 301. (5) Jacob Byers had no minor children. If his widow had any by a former marriage, they were entitled to no rights in his estate. Canole v. Hurt, 78 Mo. 649, 652. (6) The appeal in this case was taken April 25, 1888. The transcript was not filed until March 22, 1889, and for this reason the appeal should be dismissed. Caldwell v. Hawkins, 46 Mo. 263; Dean v. Jones, 27 Mo.App. 468; McCaffery v. Railroad, 31 Mo.App. 340. (7) The court should dismiss the appeal for failure to file statement as required by statute. Martin v. Nugent, 15 S.W. Mo. 422. (8) The widow is not entitled to hold the premises for any specific time, but only until her dower is assigned. Whaley v. Whaley, 50 Mo. 577. Her dower was assigned by the suit in partition (and she has received her dower from the sheriff in the sum of $ 291.25). (9) All parties are bound by the record of a former suit, where they have an interest, and have had an opportunity to make a defense or control the proceedings. Strong v. Ins. Co., 62 Mo. 289; Kelley v. Hurt, 74 Mo. 561; Landis v. Hamilton, 77 Mo. 554; Hoyt v. Greene, 33 Mo.App. 205; Bigelow on Estoppel [3 Ed.] p. 57. (10) A judgment in partition is conclusive on all parties to the record, and is a bar against all persons interested in the partition proceedings. Holladay v. Langford, 87 Mo. 577; Bobb v. Graham, 89 Mo. 200; Hart v. Steedman, 98 Mo. 452. (11) The final judgment in partition is the approval of the sale, or report of the commissioner, as the case may be. Until this order was made in the partition suit in question, Mrs. Byers could have filed a petition for review, and thus opened up the whole case, had she so desired. Murry v. Yates, 73 Mo. 13; Harbison v. Sanford, 90 Mo. 477. (12) If the court should hold that the judgment on Mrs. Byers' motion and for distribution in said suit of partition was not full and complete, then I call the attention of the court to the testimony of L. F. Cottey, which was undisputed and conclusive, that the identical matter in issue (abandonment) in this suit was passed upon by the circuit court of Knox county in the partition suit, and is, therefore, res judicata. Hick. erson v. City of Mexico, 58 Mo. 61; Douglass Co. v. Alsup, 91 Mo. 172; Piper v. City of Boonville, 32 Mo.App. 138; Case v. Gorton, 33 Mo.App. 597; Brome v. Weldon, 34 Mo.App. 378.
Jacob Byers died about the mouth 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, Missouri. She then moved to the state of Nevada, and lived there about two years. In 1885, she returned to Scotland county, Missouri, where she has since lived. On the twenty-sixth day of March, 1884, Hannah L. Campbell (formerly Byers), as a daughter and heir-at-law of Jacob Byers, deceased, together with her husband, Mathew 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, Missouri, 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, Missouri, 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, Missouri, and directed the same to the sheriff of Scotland county, Missouri, who soon thereafter returned said summons to the clerk of the circuit court of Knox county, Missouri, 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, Missouri, for the year 1884, the term to which the non ests were 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, Missouri. This was sixty days...
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