Jones v. Park

• Decision Date: 31 December 1924
• Docket Number: No. 24262.,24262.
• Citation: 271 S.W. 370
• Parties: JONES et al. v. PARK et al.
• Court: Missouri Supreme Court

271 S.W. 370

JONES et al. v. PARK et al.

No. 24262.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Rehearing Denied March 20, 1925.

Motion to Transfer to Court in Banc Overruled April 9, 1925.

Appeal from Circuit Court, Platte County; A. M. Tibbels, Judge.

Action by William Z. Jones and others against Elihu Park, Stuart Thompson, and others. Judgment for plaintiffs, and named defendants appeal. Affirmed.

Haff, Meservey, Michaels, Blackmer & Newkirk, of Kansas City, for appellants.

A. D. Gresham, of Platte City, for respondents.

HIGBEE, C.

This suit was instituted January 15, 1917, to partition 445.76 acres in Platte county. This is the second appeal. The facts developed at the first trial are clearly stated in the opinion by Judge Goode, in 282 Mo. 610, 222 S. W. 1018. In the state of the record, the court was unable to decide the case on its merits. It involved a collateral attack upon the judgment of the circuit court of Montgomery county, Ky., construing the will and partitioning the lands of William Ragan, deceased. Elihu Park, Laura Park, his wife, and Mary Park, their daughter, then a minor, were joined as codefendants in that action. They were nonresidents of Kentucky, and were living in Platte county, Mo., when that suit was commenced. The judgment recites that they were duly summoned in the action. This recitation is based on a warning order authorized by the Kentucky Statutes. See page 620 (222 S. W. 1019). Judge Goode, near foot of page 627 (222 S. W. 1022), said:

"This method of notifying nonresidents of litigation to which they were parties, took the place in Kentucky, at the time of the suit in Montgomery county, of notice by an order of publication, and the steps prescribed must have been followed substantially for the notice to be effective. Carr's Adm'r v. Carr, 92 Ky. 552. Sections 57, 58, and 59 of Bullitt's Code of 1883 were proved; but section 60, which the Kentucky decisions hold fixes and determines the moment when jurisdiction is completely acquired by following the steps prescribed to notify a nonresident, was not proved. Nor were any of the decisions of the Kentucky Court of Appeals, which have adjudicated the effect of said statute, put in evidence, or their doctrines otherwise proved; and no stipulation was made that the relevant law of Kentucky might be noticed without proof of it. The question of whether there was notice to the Missouri defendants of the suit, if it should be decided without the aid of the omitted Kentucky law, would be answered in the negative."

After the reversal, the plaintiffs filed a second amended petition, and certain sections of the Kentucky Statutes and decisions of the Court of Appeals of that state, relevant to the issues, were pleaded by the plaintiffs and the defendants. There was also additional evidence offered at the trial. The court found the facts as they were found at the first trial; that is, that the plaintiffs and the defendants, other than the appellants Elihu Park and Stuart Thompson, were the owners of the 416.76 acres; that this land was bought with a trust fund, and conveyed to Laura Park upon the terms, conditions, and limitations prescribed in the will of her father, William Ragan, deceased, and that upon her death, June 6, 1916, without leaving issue surviving her (her daughter, Mary Thompson, having died without issue on June 4, 1900), the title passed to her sisters or their descendants according to the terms of the will as construed by the circuit court of Montgomery county, Ky.

In referring to the order to Mitchell, the trustee, to reinvest the share of Laura Park in real estate, the former opinion uses the words "without having issue." According to the corrected transcript offered at the second trial, the order reads, "without leaving issue," so that the clause reads, "but in the event of the death of Laura Park, without leaving issue, then the title to her share," etc. See page 622 (222 S. W. 1020).

At the opening of the second trial, it was stipulated that either party may offer in evidence any relevant statute or decisions of the Kentucky Court of Appeals. It was also stipulated in this court that such statutes and decisions need not be printed nor abstracted in the appellants' abstract of the record, but it shall be sufficient to refer to them in the usual manner, and they may be considered by this court as if printed in full in the abstract.

In addition to the evidence referred to in the former opinion, it was shown at the second trial that on March 24, 1883, Elihu Park and Laura Park filed a petition in the circuit court of Platte county, praying the appointment of Elihu Park as trustee for Laura Park, to receive the money and personal property due her from her father's estate in Montgomery county, Ky. It was averred that said fund was to be invested in real estate conveyed to said Laura Park as her separate estate for her life, with remainder in fee to her issue, if there be any, but, if she dies without leaving issue, to vest in her surviving sisters in fee, etc., as directed by the will and as construed in the decree of the Kentucky court. The order was accordingly made and bond given by Elihu Park as trustee for Laura Park. His final account as trustee shows four payments received from William Mitchell, trustee in the state of Kentucky, beginning April 21, 1883, and ending January 19, 1885, aggregating $7,695.94. It shows $6,227.99 paid out for 204 acres, and various sums for improvements on the land and other expenses. This does not include money received for the sale of the 138 acres.

The transcript of the record of the proceedings in the circuit court of Montgomery county shows that, on June 9, 1883, the administrators of William Ragan, deceased, filed an amended petition reciting they had received rents from the real estate since the death of the testator amounting to about $5,000, and prayed instructions about its distribution, that on June 11, 1883, Elihu Park and wife, by J. B. Peters, attorney, entered their appearance to said amended petition, and that the court ordered the rents be distributed equally as to the 8 daughters and their trustees for reinvestment, as directed by the will, "and no parts thereof belong to the said eight devisees absolutely."

The transcript also shows that on December 16, 1884, Elihu Park and his wife filed a cross-petition, signed "Peters for Park and wife." It averred that Elihu Park had been appointed trustee for his wife by the circuit court of Platte county, and prayed that Mitchell, trustee, be removed, and the money in the hands of the administrators due Mrs. Park be paid over to Elihu Park as trustee. This cross-petition was withdrawn on December 18, 1884. Park testified that neither he nor his wife authorized Peters to appear for them in the Kentucky case; that he first learned of the suit in the circuit court of Montgomery county, Kentucky, after his daughter died in June, 1900.

Plaintiffs offered in evidence sections 57, 58, 59, and 60 of article 2 of chapter 2 of title 4 of Bullitt's Civil Code of Practice of Kentucky, revised in 1883, corresponding to sections 88, 89, 90, and 91, in force prior to 1882, and also section 38 of the Code. Section 60 (91) reads:

"A defendant against whom a warning order is made and for whom an attorney has been appointed shall be deemed to have been constructively summoned on the thirtieth day thereafter, and the action may proceed accordingly."

Section 38 reads:

"1. No appointment of a guardian ad litem shall be made until the defendant is summoned, or until a person is summoned for him, as is authorized by section 52; nor until an affidavit of the plaintiff, or of his attorney, be filed in court, or with the clerk, or presented to the judge during vacation, showing that the defendant has no guardian, curator, nor committee, residing in this state, known to the affiant."

1. Numerous decisions construing these statutory provisions are referred to in the pleadings and briefs of counsel. In Northern Bank of Kentucky v. Hunt's Heirs, 93 Ky. loc. cit. 75, 19 S. W. 5, the court said:

"There is no command to any officer to execute this order, but it stands executed, when an attorney is appointed to correspond, and a judgment in rem will be rendered, the facts authorizing it, if the defendant fails to answer within the time prescribed by the code."

"The words, `if the defendant be constructively summoned,' mean only the making of the order of warning against him."

This last quotation is from Irish Bldg. & Loan Ass'n v. Clemons, 78 Ky. 79, loc. cit. 82.

The decree of the Kentucky court, construing the will of William Ragan, was rendered May 30, 1892. The transcript of the record thereof was duly authenticated October 30, 1920, 38 years after the rendition of the judgment. The warning order and the clerk's certificate that it is mutilated and torn, in the corrected transcript, are the same as they appear in Judge Goode's opinion at page 620 (222 S. W. 1019).

Appellant's learned counsel contend there is no evidence in the record that there was a warning order or that the warning attorney performed his duty to notify the nonresidents. In Meddis v. Dellinger, 112 Ky. 500, 66 S. W. 185, not even a scrap of the warning order could be found. The Court of Appeals said:

"Is a judgment rendered in 1878, at the instance of Floyd Frye—case No. 32754—void by reason of the fact that the warning order written out by the clerk does not appear in the record or papers on file? In our opinion, this does not render the judgment void. Aside from the question of whether the nonresidents therein were necessary parties to that suit, we are of opinion, and so hold, that the mere failure to find the written warning order made by the clerk will not authorize the court, at this remote period of time, to declare the judgment void. The record leaves no doubt that a warning order was made. The clerk so certifies on the petition, and...