Brawley v. Ranney

• Decision Date: 30 April 1878
• Citation: 67 Mo. 280
• Parties: BRAWLEY et al., Appellants v. RANNEY.
• Court: Missouri Supreme Court

67 Mo. 280

BRAWLEY et al., Appellants

v.RANNEY.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.

Lewis Brown for appellants.

Service of writs in partition must be had on the minors themselves. Shaw v. Gregoire, 41 Mo. 410; Gibson v. Chouteau, 39 Mo. 565; Fulbright v. Cannefax, 30 Mo. 425; Smith v. Davis, 27 Mo. 298; Waugh v. Blumenthal, 28 Mo. 463. An order of publication can only be made by the clerk in vacation by a strict compliance with the statute. Every order or proceeding, in every case affecting parties litigant must be spread at full length upon the record, whether in term or vacation. Wag. Stat., 419, § 6; Medlin v. Platte Co., 8 Mo. 235; Milan v. Pemberton, 12 Mo. 598; Shaw v. Gregoire, 41 Mo. 413; Schell v. Leland, 45 Mo. 292.

Houck & Ranney for respondents.

The minor defendants in the partition suit, who were served, are not parties to this suit. They ratified the proceedings by accepting the money-- they are estopped from attacking them, and the plaintiffs cannot do so in their stead. Kerr v. Bell, 44 Mo. 120; Ferguson v. Bell, 17 Mo. 341; Ward v. Steamer, 8 Mo. 358; Highly v. Barron, 49 Mo. 103. The record of the partition case is conclusive against the plaintiffs on the question of notice. Latrielle v. Dorleque, 35 Mo. 233; Rumfelt v. O'Brien, 57 Mo. 569; Bernecker v. Miller, 44 Mo. 102. If it is sought to set aside the judgment in partition, suit should be brought directly for that purpose. Freeman on Judgt., §130; Cooper v. Reynolds, 10 Wall. 308; Kane v. McCown, 55 Mo. 183.

NORTON, J.

This suit is ejectment for the recovery of certain lands in the county of Cape Girardeau. The petition is in the usual form, and the answer a general denial. Judgment was rendered for the defendant on the trial, from which plaintiffs have appealed. Both parties claim title through Hiram S. Sloan, as the common source. Plaintiffs assert their right to the land in question by virtue of their being heirs of said Sloan, and the defendant claims title by virtue of a sheriff's deed thereto, the sale being made under a decree of the circuit court of said county, for the purpose of partition among the heirs of said Hiram S. Sloan, deceased. The record of the partition suit was put in evidence, from which it appears that plaintiffs, in conjunction with Samuel A. Sloan and Hiram M. Hill and Samuel A. Hill, minors and grand children of Hiram S. Sloan, deceased, were parties defendant. All of said defendants were minors except Margaret Brawley. Service was had on Samuel A. Sloan, and an affidavit was made before the clerk in vacation, stating that Margaret Brawley, Sarah A. Sloan and William R. Sloan (who are the plaintiffs in this suit), were non-residents of the State. As to them the clerk made an order of publication which was duly published, and the publication proved. It also appeared that a copy of the petition, and writ directed to the sheriff of New Madrid county to summon the guardian of Hiram M. and Samuel A. Hill was served on Isaac Hunter, guardian, and that said Hiram M. and Samuel A. Hill were not found. The interlocutory decree recites that the court, after “examining the premises, finds that publication has been made according to law.” The final decree recites the appointment of a guardian ad litem for William R., Sarah and Samuel Sloan, minor defendants, his acceptance thereof and appearance, and “that defendants had legal notice of the proceeding by publication according to law.” It further appears that the sheriff filed report of the sale made under the judgment of partition which was approved by the court, and that he executed his deed to the purchasers in conformity therewith. The receipt of A. Sloan, guardian of Samuel A. Sloan, for his distributive share of the proceeds of the sale, and the receipt of H. M. and S. A. Hill for their distributive share, were offered in evidence. The affidavit of the publisher of the Cape Girardeau Weekly Argus, proving the publication of notice, was also in evidence.

The plaintiffs assail the validity of the judgment in partition, mainly on two grounds: First, because there was no service of notice on Hiram M. and Samuel A. Hill, minor defendants; Second, because there was no legal order of publication of notice as to Margaret Brawley, Sarah A. Sloan and Willian R. Sloan.

As to the first point, it is only necessary to observe that the said Hiram M. and S. A. Hill are not complaining here, but on the contrary the evidence shows that they ratified the proceeding by accepting their distributive share of the...