Hiles v. Rule

• Decision Date: 24 March 1894
• Citation: 25 S.W. 959,121 Mo. 248
• Parties: Hiles v. Rule et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 959

121 Mo. 248

Hiles v. Rule et al., Appellants

Supreme Court of Missouri, First Division

March 24, 1894

Appeal from Louisiana Court of Common Pleas. -- Hon. E. M. Hughes Judge.

Affirmed.

Fagg & Ball for appellants.

(1) The court improperly ordered a sale of the property upon the undisputed facts shown by the testimony. A division of the property in kind is the primary mode contemplated by the statutes of this state and actual partition, so far as real estate is concerned, is more favored by all of the courts in this country, whenever it is practicable. R. S. 1889, sec 7149, and following sections; Belknap v. Trimble, 3 Paige, Ch. 577; Higginbotham v. Short, 25 Miss 160; McGillivary v. Evans, 27 Cal. 96. (2) The duty of the court to appoint commissioners to make an allotment of the lands is imperative in every case, unless it can be made apparent by the facts shown in the petition or revealed in the evidence in the trial that it can not be done without prejudice to the owners. (3) The uncontradicted testimony introduced by the plaintiff was that the land was susceptible of division and the court had no right arbitrarily to set this proof aside and order a sale of the premises. In such a case the trial court is absolutely without discretion. See statutes of 1889, title, Partition. (4) Upon the whole case as made the plaintiff was not entitled to partition of the land described in the petition. (5) The proceeding by which the interest of the plaintiff in this tract of land had been charged with the maintenance and support of his wife, Julia Hiles, and her children, was in all substantial respects regular and should have been so recognized by the court in the trial and determination of this case. R. S., sec. 6856, and following. (6) The application for maintenance as contemplated by the section referred to is in the nature of a proceeding in rem and an order of publication against the defendant when he is out of the state or his residence is unknown, is a process warranted by law in such cases.

W. H. Morrow for respondent.

(1) There is no warrant of law for the Louisiana court of common pleas to bring in a nonresident defendant, he being the sole defendant in the cause, by notice of publication. Session Acts, 1867, p. 98, sec. 3; Schell v. Leland, 45 Mo. 289; Fisher v. Davis, 27 Mo.App. 321; Hope v. Blair, 105 Mo. 85. (2) Notice by publication does not avail to give jurisdiction of the person, except as provided in section 2022, Revised Statutes, 1889. The action of Hiles v. Hiles, does not come within the class of cases therein designated. Under no circumstances would constructive notice in a case of that kind be sufficient. (3) It is true that a beneficiary in a deed of trust is a proper party to a suit for the partition of the land, but if the trustee is made a party to the suit the beneficiary is not a necessary party, when, as in this case the interest of the cestui que trust is set out in the petition. (4) Besides this, the objection is made for the first time, here in the appellate court. The defect of parties, if such there be, appears on the face of the petition; no objections were made in the trial court of any kind, no demurrer was interposed, no objection taken by answer, nor was the matter called to the attention of the court in the motion for a new trial. Rogers v. Tucker, 94 Mo. 352; Mueller v. Kaessmann, 84 Mo. 318; R. S. 1889, sec. 2302. (5) The trustee represents the interest of the cestui que trust, and for that reason the beneficiary is not a necessary party. But in any event the judgment from which this appeal is taken is not a final judgment, and the cestui que trust can be made a party. Parkinson v. Caplinger, 65 Mo. 290. R. S. 1889, secs. 2098, 2101.

OPINION

Macfarlane, J.

This suit was brought by plaintiff in the Louisiana court of common pleas for the partition of a tract of land situate in Pike county, of which he claimed to be the owner of one undivided one-fifth, subject to a deed of trust to defendant Tinsley, as trustee, to secure a debt of $ 300 to W. H. Morrow, who was not made a party to the suit. The petition states that defendant Rule is the owner of the remaining four-fifths. It is stated that partition in kind can not be made and a sale of the land and division of the proceeds is prayed.

Defendant Tinsley, answered, admitting the facts stated in the petition. Defendant Rule, by answer, denied that plaintiff was the owner of the undivided one-fifth of the land, but on the contrary alleged that his interest therein had been sold under an execution issued upon a judgment for $ 600 against him in favor of his wife, in a proceeding by her for maintenance, and had been purchased by D. A. Ball, to whom a sheriff's deed had been duly executed and delivered.

Julia Hiles, the wife of plaintiff, on her own motion, was made a party defendant, on the ground that she was a judgment creditor of the plaintiff, having, as such, a lien on his interest in the land. By answer she stated her supposed rights and asked that her interests be protected. D. A. Ball, the purchaser at sheriff's sale, was not made a party to the suit.

Upon a trial the court found and adjudged the interests of the parties as stated in the petition and ordered a sale of the premises. From this judgment defendants Rule and Julia Hiles appealed.

I. The judgment under which the sale was made was rendered by the Louisiana court of common pleas. Julia Hiles, the wife of plaintiff in this suit, was plaintiff in that one, and her husband was defendant. The suit was for maintenance. She charged in her petition that her husband had abandoned her and their two children, leaving nothing for their support. That he was an owner of an undivided interest in the land here in dispute, describing it, and that "he is not now a resident of, nor residing in, this state." The prayer was that the court would adjudge her such support and maintenance as would be just and right to be paid out of said property.

Upon filing this petition an order of publication was made, which was afterwards duly published. No objection is made to the form or substance of this order. At the May term of said court, to which defendant had been required, by order, to appear, a judgment by default for $ 600 was rendered against him, as alimony, and special execution awarded for the sale of his interest in the land.

The judgment makes this recital of its finding: "And, it appearing to the satisfaction of the court, from the evidence produced, that the said defendant is not a resident of, nor residing within, this state, and that due notice of the filing of said petition, and of the matters and things therein contained, has been given as required by law, by publication in a newspaper printed and published in said county, the same is taken as confessed, and judgment rendered against said defendant by default."

Thus it appears from the record that defendant was a nonresident of the state, and the only jurisdiction the court acquired of his person was by virtue of this order of publication. Plaintiff insists that the jurisdiction of the Louisiana court of common pleas over the person is limited exclusively to that acquired by personal service, and to a single defendant only in case he resides, or is served with process, within the territorial jurisdiction of said court.

The jurisdiction of said court is defined by section 3, Acts of 1867, page 99, as follows:

"Section 3. Said court shall be held within the city of Louisiana, and shall have power and jurisdiction within the city of Louisiana, and within the townships in the first section of this bill specified. First, concurrent original jurisdiction with the circuit court of Pike county in all civil cases when the defendant, defendants, or either of them, reside within said city or either of said townships and when the original process is served in said townships; second, like concurrent jurisdiction with the said circuit court in all civil cases when the defendant or defendants, or either of them, do not reside in the county of Pike, and the original process is served within the townships aforesaid; third, concurrent jurisdiction with said circuit court in all actions whatever by and against boats and vessels; fourth, concurrent superintending control with the circuit court over the justices of the peace in all civil cases in said townships, and concurrent appellate jurisdiction from justices' courts in said townships, and exclusive original jurisdiction in appeals in all cases tried before the recorder of the city of Louisiana; fifth, concurrent original jurisdiction with justices of the peace in all civil cases not exclusively cognizable before a justice of the peace; sixth, concurrent original jurisdiction with the circuit court in all civil cases where there are two or more defendants, and one or more of them reside within said townships, and defendant or defendants may be found therein; seventh, concurrent original jurisdiction with justices of the peace in all actions of forcible entry and detainer, where the cause of action originates in said townships; eighth, in all cases where a suit is commenced in said court, and one or more of the defendants reside in said townships and the remainder reside outside thereof. The said court may have power to cause process to be issued against all of the defendants, and the officer authorized to serve process may...