Johnson v. Detrick

• Decision Date: 14 November 1899
• Citation: 152 Mo. 243,53 S.W. 891
• Court: Missouri Supreme Court
• Parties: JOHNSON v. DETRICK et al.

53 S.W. 891

152 Mo. 243

JOHNSON v. DETRICK et al.

Supreme Court of Missouri. Division No. 1.

November 14, 1899.

PARTITION — VENUE — PLEADING — JURISDICTION — OBJECTION — WAIVER.

1. Under Rev. St. 1889, § 7133, providing that in case all the parties to a suit for partition do not reside in any county in which any part of the premises is situated, or all of them are nonresidents of the state, the suit must be brought in the county in which an equal or greater part of such premises lies, suit must be brought in the county in which an equal or greater part in area of the premises is situate.

2. Where it appears on the face of a petition for partition that the forum is improperly laid, a plea to the jurisdiction, even when coupled with a plea to the merits, may be made by answer; and the objection is not waived by failing to demur as permitted by Rev. St. 1889, § 2043.

3. Rev. St. 1889, § 7133, providing that in case all the parties to a suit for partition do not reside in any county in which any part of the premises is situate, or all of them are nonresidents of the state, the suit must be brought in the county in which an equal or greater part of such premises shall lie, is mandatory.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Partition by Virginia M. Johnson against Daniel W. Detrick and others. Petition dismissed, and plaintiff appeals. Affirmed.

Gleed, Ware & Gleed and Sandusky & Sandusky, for appellant. D. C. Allen, for respondents.

MARSHALL, J.

J. P. Johnson, a resident of the state of Kansas, died testate and solvent in 1898, and his will was probated at his domicile, in Doniphan county, Kan. He was seised of 40 acres of land in Lawrence county, Mo., 80 acres in Monroe county, 320 acres in Texas county, 400 acres in Miller county, 473 acres in Clay county, 11,026 acres in Shannon county, and 19,444 acres in Laclede county. All of his heirs are nonresidents of Missouri, except Mary C. Todd and Martha J. Sprague, who reside in St. Louis, and no part of the land lies there. The will devised one half of the property to the widow, the plaintiff, and the other half to the children and descendants of his five brothers. The widow instituted this action for a partition against the other heirs in the circuit court of Clay county. The petition, after other material allegations, set out specifically the location of each tract of land, and then averred that "a majority of the parties entitled to said lands do not reside in any county in the state of Missouri, and that the greater part in value of said lands are situate in Clay county, Missouri." Of the defendants, Charles W. Johnson, Charles R. Stone, Franklin H. Stone, Samuel W. Stone, Harriett A. Jones, and John W. Stone by their answers denied the allegation of the petition that the greater part in value of the premises is situated in Clay county, Mo., and averred affirmatively that the circuit court of Clay county had no jurisdiction of the cause, because none of the parties reside in either of the counties where the land is situate, but that all of the parties are nonresidents of Missouri, except Mary C. Todd and Martha J. Sprague, who reside in St. Louis, "and that the greater part of said premises, both in area and value, is situate in the county of Laclede, in the state of Missouri." Twenty-four other defendants answered, raising issues not material to the question here involved. The other defendants made default. Plaintiff filed a general reply to the answers. The case was tried by the court, a jury being waived; and the court found that the land in Clay county was equal in value with the land in Laclede county, but that the land situate in Laclede county was greater in area than the part of the lands situate in either of the counties of Clay, Miller, Lawrence, Texas, Monroe, or Shannon, and hence that it had no jurisdiction of the cause, but that the jurisdiction to hear and determine the cause is in the circuit court of Laclede county, and therefore dismissed the petition. Plaintiff's motion for new trial was based entirely upon the alleged error of the court in holding that it had no jurisdiction, and upon the ground that the value, and not the area, of the land was the true test of jurisdiction, and, as the court had found the Clay county lands to be of equal value with the Laclede county lands, the circuit court of Clay county had jurisdiction. This motion being overruled, the plaintiff appealed. Three propositions are asserted by plaintiff: (1) That the value, and not the area, of the lands to be partitioned determines the jurisdiction; (2) that defendants have waived all objection to the jurisdiction; (3) that the statute (section 7133, Rev. St. 1889) is directory, and not mandatory. We will consider these propositions in the order stated.

1. The principal question involved is the first contention of the plaintiff, that under section 7133, Rev. St. 1889, the suit must be brought in the circuit court of the county where an equal or greater part in value of the premises to be partitioned may be. The defendants contend that area, and not value, must control the forum. This is a case of first impression in this state, and the statute itself must solve the question. That statute (section 7133, Rev. St. 1889) provides as follows: "Such petition shall be filed in the circuit court of the county in which such lands, tenements or hereditaments lie; but if the same shall be in two or more counties, whether in detached parcels or otherwise, said petition shall be filed in the circuit court of the county in which any portion of such premises are situate, and a majority of the parties entitled thereto reside; and in case a majority of said parties do not reside in any such county, or all of them are non-residents of the state, the proceedings for partition shall be had in the circuit court of that county in which an equal or greater part of such premises may be." Analyzed, the statute provides: (1) If all the land lies in the same county, the suit must be brought in that county; (2) if the land lies in two or more counties, the suit may be brought in the county in which any portion of the premises is situate, and where a majority of the parties entitled thereto reside; (3) in case a majority of such parties do not reside in any county in which any part of the premises is situate (which is the case here), or all of them are nonresidents of the state, the suit must be brought in the county in which an equal or greater part of such premises shall lie. Manifestly this case falls under the first provision of the third class, for a majority of the parties do not reside in any of the counties where the land is situated, and hence the suit must be brought in the county in which an equal or greater part of such premises lies. Plaintiff's construction requires the interpolation of the words "in value" after the word "part" in the last line of the section, and her able counsel has, by illustrations and puzzles, pointed out possible confusions which may result from interpreting the statute to mean area, and not value; but a critical analysis will show that the same results might follow, whichever meaning is put on the statute. For instance, counsel argues that if the deceased owned 206 feet square in the heart of St. Louis, worth $1,000,000, and 1 acre in McDonald county, worth only $1, the circuit court of McDonald county, by reason of the land in that county having a greater area, would have jurisdiction. But suppose we reverse the picture, and take a case where the deceased owned at the time of his death parts of land of the area and value supposed, and that the next day valuable mineral deposits are discovered on the McDonald county land, which make it worth more than the St. Louis part; would the jurisdiction shift from St. Louis to McDonald county because the value had changed? Or suppose the McDonald county one acre at the time of the death or of the institution of the suit had such mineral deposits on it that it was worth many time the value of the St. Louis part of the premises, and the next day the vein of mineral ran out, so that it became only valuable as farming land, and of much less value than the St. Louis land; would the jurisdiction shift from McDonald county to St. Louis? Again, counsel imagines a case where the decedent owned land in 25 counties, and the partition suit was brought in the county where the greatest area of land lay, and after judgment, and a sale of the land, it is discovered that the decedent did not own any land in the county where the suit was brought; and he says the purchaser's title would fail, for the partition judgment was coram non judice. But would not the same be the result if the suit had been brought in the county where the greatest part of the land in value was situate? The fact that in bringing the suit the jurisdiction was determined by area or by value could not determine the title to the land, and in either event the purchaser at the partition sale would get only the title which...