Jones v. Patterson

• Decision Date: 19 March 1925
• Docket Number: 24262
• Citation: 271 S.W. 370,307 Mo. 462
• Parties: WILLIAM ZOLLIE JONES et al. v. CHARLES CLIFFORD PATTERSON et al.; ELIHU PARK and STUART THOMPSON, Appellants
• Court: Missouri Supreme Court

271 S.W. 370

307 Mo. 462

WILLIAM ZOLLIE JONES et al. v. CHARLES CLIFFORD PATTERSON et al.; ELIHU PARK and STUART THOMPSON, Appellants

No. 24262

Supreme Court of Missouri

March 19, 1925

Rehearing Denied March 20, 1925.

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

Appeal from Platte Circuit Court; Hon. A. M. Tibbels Judge.

Affirmed.

Haff Meservey, Michaels, Blackmar & Newkirk for appellants.

(1) The court erred in admitting in evidence any of the statutes or decisions of Kentucky relating to constructive service offered by plaintiffs, which were not pleaded in plaintiffs' petition. Smith v. Smith, 206 Mo.App. 646; Mathison v. Railroad, 219 Mo. 542; Rhodes v. Land Co., 105 Mo.App. 279; Platt v. Parker Washington, 161 Mo.App. 669. (2) The court erred in admitting in evidence the decree and proceedings of the Circuit Court of Montgomery County, Kentucky, construing the will. (a) Because such court did not acquire jurisdiction of Elihu Park or Laura Park or Mary Park, nor were they notified of said suit as required by the laws of Kentucky. The pretended warning order was insufficent under the laws of Kentucky. No warning attorney was properly appointed and he did not notify or attempt to notify Elihu Park, Laura Park or Mary Park as required by the laws of Kentucky. Jones v. Park, 282 Mo. 610; Green's Heirs v. Breckenridge Heirs, 20 Ky. 348, 4 T. B. Monroe, 541; Brownfield v. Dyer, 70 Ky. 505, 7 Bush, 506; Carr's Administrator v. Carr, 92 Ky. 552; Berryman v. Mullins, 8 B. Monroe, 152; Tevis Representatives v. Richardson, 7 Mon. 655; Arthurs v. Harlan, 78 Ky. 138; Payne's Admr. v. Hardesty, 12 Ky. Law Rep. 336; Miller v. Hall, 19 Ky. (3 T. B. Mon.) 242; Jeffrey's Heirs v. Hands Heirs, 37 Ky. (7 Dana) 89; Clark v. Raison, 104 S.W. 342; Warrich v. McCormich, 150 Ky. 800; Hyden v. Calames, 161 Ky. 593; First Natl. Bank v. Sanders Bros., 162 Ky. 374; Galpin v. Page, 85 U.S. 350, 21 L.Ed. 959; Cloud v. Pierce City, 86 Mo. 357; 23 Cyc. 1577; Stanton v. Thompson, 234 Mo. 7; Priest v. Capatain, 236 Mo. 446; Davis v. Montgomery, 205 Mo. 271; Murdock v. Hillyer, 45 Mo.App. 287; Schell v. Leland, 45 Mo. 289; Myers v. McRay, 114 Mo. 377; Tourville v. Wabash Railroad Co., 61 Mo.App. 527; Bradley v. Welch, 100 Mo. 258; Eager v. Stover, 59 Mo. 87; Marks v. Fore, 51 Mo. 69; Hester v. Frink, 189 Mo.App. 40; Banister v. Weber Gas. Co., 82 Mo.App. 528; Weith Hdw. Co. v. Land, 54 Mo.App. 147; Clark v. Ogilvie, 63 S.W. 429. (b) Because neither Elihu Park, Laura Park, nor Mary Park entered their appearance in said suit. If Elihu Park and Laura Park had appeared in said suit, such action would not be binding upon these defendants who claim under Mary Park. Jones v. Park, 282 Mo. 610. (c) Because the plaintiffs in this suit were not adversary parties in the Kentucky suit to these defendants and those under whom they claim. McMahen v. Geiger, 73 Mo. 145; State Bank of St. Louis v. Bartle, 114 Mo. 276; O'Rourke v. Lindell Ry. Co., 142 Mo. 343, 23 Cyc. 1279. (d) The judgment in the Kentucky suit did not conclude the defendants here because the issues in that case were different from the issues in this case. (3) The court erred in failing to find that Mary Park was seized of a vested estate and that Elihu Park is entitled to an undivided three-eighths interest in the land by inheritance and the owner of an estate by the curtesy in another one-eighth thereof and that the defendant Stuart Thompson is the owner of an undivided one-half of such land. The court erred in admitting any of the statutes or decisions of Kentucky offered in evidence by plaintiffs. Jones v. Park, 282 Mo. 610; Sec. 7, ch. 80, 2 Stanton's Revised Statutes of Kentucky; Sims v. Skinner's Executor, 118 Ky. 573; Middleton's Heirs v. Middleton's Devisees, 43 S.W. 677; Kuhn v. Kuhn, 24 Ky. 112; Thackston v. Watson, 84 Ky. 206; Wills v. Wills, 85 Ky. 486; Carpenter v. Hazelrigg, 20 Ky. 231; Burnam v. Suttle, 148 Ky. 495; Prewitt v. Prewitt, 178 Ky. 346; Harvey v. Bell, 118 Ky. 512; Sevier v. Woodson, 205 Mo. 202; Tindell v. Tindell, 167 Mo. 218; Deacon v. Union Trust Co., 271 Mo. 669; Kennedy v. Arthur, 3 Ky. Opinions, 466; Martin v. Thompson, 229 S.W. 112; Waddell v. Waddell, 99 Mo. 338; Chew v. Keller, 100 Mo. 362. (4) Defendants are not estopped by the recitals in the deeds. Jones v. Park, 282 Mo. 610; Shields v. McClure, 75 Mo.App. 631; Spurlock v. Sproule, 72 Mo. 503; State v. Laies, 52 Mo. 396; May v. Crawford, 150 Mo. 504. (5) The court erred in holding that Elihu Park was not the owner of an undivided interest in the ninety-one acres. (6) The court erred in holding that Elihu Park was not entitled to recover for improvements made on the land.

A. D. Gresham for respondents.

(1) The court did not err in admitting evidence of the statutes and decisions of Kentucky relating to constructive service offered by plaintiffs, which were not pleaded in plaintiffs' petition. (a) Because these matters in plaintiffs' reply were in answer to the new matter set up in the separate answers of defendants, Park and Thompson. Barron v. Store Co., 237 S.W. 786; Brown v. Conn Fire Insurance Co., 195 S.W. 62. (b) Because the answer and cross-petition of Linda Benton et al., which plead all those statutes and decisions, properly raised the issue and made the testimony admissible. (c) Because it was stipulated that the evidence introduced on behalf of plaintiffs should be considered introduced on behalf of those defendants. (2) The decree and proceedings of the Circuit Court of Montgomery County, Kentucky, construing the will of William Ragan were properly admitted in evidence. (a) Because Elihu Park and Laura Park were properly notified of said suit as required by the laws of Kentucky and appeared therein and filed answer, and filed exceptions to the action of that court in the partition proceedings. (b) Because Mary Park was notified of said suit as required by the laws of Kentucky, a sufficient warning order was issued, a warning-order attorney appointed to represent her and she was notified of said suit as required by the laws of Kentucky, and a lawfully appointed guardian ad litem filed answer for her and represented her in the proceedings. Sections 57, 58, 59 and 60, art. 2, Civil & Criminal Code of Practice of the State of Kentucky, revised and adopted by the General Assembly of Kentucky in 1883, being Sections 88, 89, 90 and 91 of the code in force immediately prior to 1882; Sec. 38, Art. 3, of said Code; Thomas v. Mahone, 9 Bush, 111; Newcomb's Executors, v. Newcomb, 13 Bush, 544; Carr's Admr. v. Carr, 92 Ky. 552; Wilson v. Teague, 95 Ky. 47; Sears' Heirs v. Sears' Heirs, 95 Ky. 173; Meddis v. Dellinger, 112 Ky. 500; Kreiger v. Sonne, 151 Ky. 739; Ball v. Poor, 81 Ky. 27; Northern Bank v. Hunt's Heirs, 93 Ky. 75; Ramsey v. Heith's Admrs., 25 Ky. Law Rep. 582; Atherton v. Warren, 120 Ky. 151. (c) The parties to this are the same parties, or their privies, as in the Kentucky suit, 107 Mo. 414. (d) Where reliance is placed on a foreign judgment the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly. Leiber v. Leiber, 239 Mo. 48; State ex rel. v. Williamson, 57 Mo. 192; Assurance Co. v. Waldron, 238 Mo. 61; U.S. Constitution, sec. 1, art. 4. (e) The warning order under the statutes of Kentucky is itself the notice to and the service upon non-residents, just as publication of notice in a newspaper by the court clerk is service of notice to a non-resident under the laws of this State. Under the Kentucky statutes, this warning order is published by the clerk by writing it on the back of the petition, instead of publishing it in a newspaper. Northern Bank v. Hunt's Heirs, 93 Ky. 75; Hoffman v. Brungs, 83 Ky. 405; Wilson v. Teague, 95 Ky. 47; Irish Bldg. & Loan Assn. v. Clemons, 78 Ky. 82; Brownfield v. Dyer, 7 Bush, 507. (f) The appointment of a warning attorney is made after the court acquires jurisdiction of the non-resident parties, by the making of the order of warning by the clerk. "The words, 'if the defendant be constructively summoned,' mean only the making of the order of warning against him." Cases cited in preceding paragraph. (g) As a matter of comity, this court in construing that statute, will follow the rulings from the Supreme Court of Kentucky. Handlin v. Burchett, 270 Mo. 114, 118. (3) The judgment of the trial court was correct under the laws of Kentucky, and under the laws of Missouri. (a) The fair and reasonable construction of the will and codicil of William Ragan, so far as it relates to Laura Park and her daughter, Mary Park Thompson, is that Mary Park Thompson having predeceased her mother and Laura Park having died without issue living, the fee vests in her deceased sisters, or the children of her deceased sisters. Chap. 63, art. 1, sec. 9, General Statutes of Kentucky; Harvey v. Bell, 118 Ky. 512; Garr v. Elble, 16 Ky. Law Rep. 661; Lepps v. Lee, 92 Ky. 16; Craig's Admrs. v. Williams, 179 Ky. 329; Froman v. Froman, 175 Ky. 536; Williamson v. Williamson, 18 B. Monroe, 329; Lindenburger v. Cornell, 229 S.W. 54; Eakins v. Eakins, 229 S.W. 130; Birney v. Richardson, 5 Dana, 424; Bradshaw v. Williams, 140 Ky. 163; Hood v. Dawson, 98 Ky. 285; Webb v. Trustees First Baptist Church, 90 Ky. 117; Rice v. Rice, 133 Ky. 406; Phoenix & Third Nat. Bank v. Cassell, 224 S.W. 1073; Walton v. Bohannon, 150 Ky. 486; R. S. 1909, sec. 2873; Gannon v. Pauk, 200 Mo. 75; Trust Co. v. Kirby, 255 Mo. 416; Collier v. Archer, 258 Mo. 383; Threlkeld v. Threlkeld, 238 Mo. 459; Armour v. Frey, 226 Mo. 646; Gannon v. Albright, 183 Mo. 238; Gibson v. Gibson, 239 Mo. 490; Monroe v. Collins, 95 Mo. 33; Haines v. Tolson, 73 Mo. 320; Cox v. Jones, 229 Mo. 53; Sullivan v. Garesche, 229 Mo. 476; Deacon v. Trust Co., 271...