Cashion v. Gargus

• Decision Date: 15 February 1916
• Citation: 183 S.W. 301,267 Mo. 68
• Parties: JAMES F. CASHION and AUDREY BELL RAY, Appellants, v. J. W. GARGUS et al
• Court: Missouri Supreme Court

183 S.W. 301

267 Mo. 68

JAMES F. CASHION and AUDREY BELL RAY, Appellants, v. J. W. GARGUS et al

Supreme Court of Missouri, Second Division

February 15, 1916

Appeal from Dunklin Circuit Court. -- Hon. C. B. Faris, Judge.

Affirmed.

Bradley & McKay for appellants.

(1) The original petition upon which said judgment was rendered failed to state any facts sufficient to constitute a cause of action against defendants in that cause: 1st, because the petition, being based upon a verbal contract for the sale of real estate, failed to plead facts which would take it out of the Statute of Frauds, and no proof of facts could be offered which would take it out of the statute without being pleaded 2nd, because the petition failed to describe the land; and 3rd, because the petition showed on its face that it was barred by laches. Therefore, no valid judgment could be rendered against these minor defendants on said petition. Chambers v. LeCompte, 9 Mo. 575; Wildbahn v Robidoux, 11 Mo. 659; Walker v. Ray, 111 Ill. 315; Lloyd v. Kirkwood, 112 Ill. 229; Meyer v. Mitchell, 77 Ala. 312; Price v. Bell, 91 Ala. 108; Askeer v. Carr, 81 Ga. 685; Northrob v. Boone, 66 Ill. 368; In re Ferguson, 124 Mo. 574; Anderson v. Scott, 94 Mo. 637. (2) A demurrer ought to have been sustained to the evidence in the original cause of action, because the petition was based upon an oral contract for the sale of real estate and O. B. Harris could not testify, the other party to the alleged contract having been dead and the burden was on plaintiff to establish his case against these minors by proving all the material allegations. Veth v. Gierth, 92 Mo. 97; Foster v. Kimmons, 54 Mo. 488; Taylor v. Williams, 45 Mo. 80; Davis v. Petty, 147 Mo. 374; Gibbs v. Whitwell, 164 Mo. 387; Charpiot v. Sigerson, 25 Mo. 63; Strange v. Crowley, 91 Mo. 287; Taylor v. Von Schrader, 107 Mo. 206; Alexander v. Alexander, 150 Mo. 579; Collins v. Trotter, 81 Mo. 275. (3) The judgment rendered on the 24th of January, 1896, against the minor heirs of James H. Cashion, is not binding because the petition was amended wholly changing the cause of action as alleged in the original petition filed, and the record fails to show any additional service upon the minors after the amendment, and fails to show the answer of the guardian ad litem to said amended petition and for that reason the judgment does not bind these plaintiffs. Cauthorn v. Berry, 69 Mo.App. 404; Powell v. Horrell, 92 Mo.App. 406; Liese v. Meyer, 143 Mo. 547; Pruett v. Warren, 71 Mo.App. 84; Grigsby v. Barton County, 169 Mo. 221; Finner v. Nichols, 158 Mo.App. 539; Bick v. Baughn, 140 Mo.App. 595. (4) The guardian ad litem must do for the minor what he could do for himself, and when the record fails to show that the guardian ad litem has performed his duties, a judgment rendered against minors will not bind them. Reineman v. Larkin, 222 Mo. 156. (5) All of the facts upon which one relies for judgment against an infant, answering by guardian ad litem, must be proved. And the guardian ad litem cannot omit anything, or waive anything which will sustain the adverse party's case. Collins v. Trotter, 81 Mo. 275; Revely v. Skinner, 33 Mo. 98. (6) The original judgment rendered on the 24th day of January, 1896, is, as to these minors, a default judgment, because the guardian ad litem, if any, appointed by the court, could not waive or admit anything, and the petition and judgment, must show jurisdiction in order to make a valid judgment against plaintiffs who were minors at the time the judgment was rendered, and the petition and judgment in that cause failed to show jurisdiction, upon the minor plaintiffs, and the judgment was void in a direct attack. Schneider v. Patton, 175 Mo. 684; Jewett v. Boardman, 181 Mo. 647; Wilson v. Dorrow, 223 Mo. 520.

T. R. R. Ely for respondent.

The minors in the original suit for specific performance were duly served with summons to appear at the January term of the Dunklin County Circuit Court and cause was continued to July term, 1894, and at July term, 1894, a guardian ad litem was duly appointed, who filed his acceptance and answer. All the statutory requirements were complied with and the court had jurisdiction over said minors. Secs. 1745 and 1748, R. S. 1909. While the guardian could waive nothing or confess nothing for his wards, that did not affect plaintiffs' right to amend after service and the appointment of guardian ad litem and filing of his acceptance and answer, and he can then do for the minor what he could do for himself so far as pleading is concerned, and "he can act in regard to his ward's interest, just like an ordinary litigant," except he could not waive or confess anything for them, which he did not do in this case. Collins v. Trotter, 81 Mo. 284. There is nothing in this record to show that the guardian waived anything or admitted anything for his ward, but on the contrary appeared and required strict proof of all the allegations in the petition and the judgment was a valid one. Pevely v. Skinner, 33 Mo. 98; LeBourgeoise v. McNamar, 82 Mo. 189. The court having acquired jurisdiction it had the right to order or permit the pleadings to be amended upon such terms as were just. Sec. 1846, R. S. 1909. And there is no different rule provided by statute where the minor is represented by a guardian ad litem.

WILLIAMS, C. Roy, C., concurs. Faris, J., not sitting.

OPINION

WILLIAMS, C. --

This action was instituted in the circuit court of Dunklin County to set aside the decree rendered in a certain cause in said court on the 24th day of January, 1896, and to reinstate said original cause and to permit the plaintiffs in this case to answer and defend against the same. Trial was had resulting in a judgment in favor of the defendants, and plaintiffs duly perfected an appeal to this court. The decree which this suit seeks to set aside was a decree entered in a suit for specific performance of a contract to convey real estate. The original decree granted the relief prayed and vested the title to the real estate in the plaintiff in said original suit. The two plaintiffs in the present suit were minor defendants in the original suit. O. B. Harris, one of the defendants in the present suit, was the plaintiff in the original suit. Defendant Gargus in the present suit is the grantee of said Harris. Defendant Hardesty in the present suit is the tenant of said Gargus.

The petition in the present suit was in two counts, the first count seeking the relief above mentioned and the second count being in ejectment. Plaintiffs, in the first count of the petition, allege in substance that the plaintiff in the original suit was not entitled to recover therein, but that they have a good and sufficient defense to his claim for specific performance of a contract to convey said land to him, and further alleged that the day before the case was tried the plaintiff in said original suit was permitted to amend his original petition by changing the description of the land therein mentioned and that the amendment entirely changed the cause of action, and that no additional service was had upon said minor defendants after said amended petition was filed, and that for that reason said original decree was null and void and had no binding force or effect upon said minor defendants (these plaintiffs). The petition further alleged that the original petition showed on its face that the cause of action was barred by laches and failed to allege that any demand for performance had been made by the plaintiff upon the person with whom he contracted for the purchase of said land.

The answer filed in the present suit was a general denial. At the request of the plaintiffs in the present suit, the trial court made a special finding of law and fact and upon examination we find that the same correctly and tersely states the facts shown by the evidence and necessary to be known for a proper review of the points presented upon this appeal. For that reason we copy this special finding of facts and law, together with the trial court's judgment, which was as follows:

"Come now plaintiffs herein in person and by counsel and the defendants in person and by counsel, and this case is taken up and submitted to the court, and the court proceeds to hear the evidence and to determine the rights of the parties in this case, and after hearing the evidence and a motion having been filed asking separate findings of law and facts, the court finds:

"That at the January term of the Dunklin County Circuit Court, 1894, in a certain case wherein O. B. Harris was plaintiff, and Mollie A. Shelton, formerly Mollie A. Cashion, widow of decedent Cashion, below mentioned, Charles E. Cashion, a minor, James F. Cashion, a minor, and Audrey Bell Cashion, a minor, heirs of James F. Cashion, were defendants, a certain bill in equity, the general nature of which was for specific performance of a contract to convey real estate and to divest title to the northwest quarter of the northwest quarter of section twenty-five, township eighteen north, of range nine east, in Dunklin County, Missouri, out of the defendants and to vest same in the plaintiff, came on to be heard, plaintiff alleging, among other things in his petition, that James F. Cashion, deceased, father of the minor defendants and former husband of said Mollie A. Shelton, had sold the land in dispute to O. B. Harris, during his (decedent's) lifetime, and had placed him, said Harris, in possession of said premises, and that full payment for said land had been made by said Harris, but that the said James F. Cashion departed this life in April, 1901, without making the said O. B. Harris a deed for said land.

"The court further finds that the defendants were properly summoned into court; that ...