Jones v. Yore

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBurgess
Citation142 Mo. 38,43 S.W. 384
Decision Date07 December 1897
PartiesJONES v. YORE et al.
43 S.W. 384
142 Mo. 38
JONES
v.
YORE et al.
Supreme Court of Missouri, Division No. 2.
December 7, 1897.

GUARDIANS AD LITEM — COMPENSATION — HOW MADE — NOTICE — JURISDICTION — COSTS.

1. A court that has appointed a guardian ad litem for minor defendants does not retain jurisdiction of such defendants, so that it can render judgment on a motion for allowance to the guardian for his services, which motion is filed after final judgment in the case, without notice thereof being served on such defendants.

2. Where minor defendants have no guardian, and the court, in order to protect their interests, appoints a guardian ad litem, the court has authority to allow, against the wards, compensation to the guardian ad litem for his services.

3. Under Rev. St. 1889, § 2920, providing that the prevailing party in a civil suit shall recover his costs against the other party, an allowance of compensation to a guardian ad litem could not be taxed as costs in case the infants were the prevailing party.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by James C. Jones against Clement Yore and others for services rendered as guardian ad litem. From a judgment for plaintiff, defendants appealed to the St. Louis court of appeals, which court transferred the cause to the supreme court. Reversed.

J. D. Johnson, for appellants. B. Schnurmacher, for respondent.

BURGESS, J.


This is an action by plaintiff to recover against defendants the sum of $2,000, which was taxed in his favor by the circuit court of the city of St. Louis for services rendered defendants as their guardian ad litem in a proceeding to contest the validity of the will of Patrick Yore, their deceased grandfather. There was judgment in favor of plaintiff for the sum claimed, from which defendants were granted an appeal to the St. Louis court of appeals, and the cause was by that court transferred to the supreme court, upon the ground of there

43 S.W. 385

being involved a constitutional question. On November 19, 1890, a suit was begun in the circuit court of St. Louis to set aside the will of Patrick Yore, in which his children were plaintiffs, and the defendants herein, his grandchildren, all of whom were minors, were defendants. These defendants were all duly served with process, and thereafter the plaintiff, by an order of court duly entered of record, was appointed to act as their guardian ad litem in the cause. The guardian ad litem filed an answer on behalf of the minors, and on March 4th, of the February term, 1893, of said court, there was a verdict and judgment in favor of defendants sustaining the will. Real property of value of several hundreds of thousands of dollars was involved in that litigation. On March 17, 1893, the plaintiffs in that case filed a motion for a new trial, which was continued until October 2, 1893, when it was withdrawn. While the motion for a new trial was pending and undetermined, to wit, on June 1, 1893, the guardian ad litem (plaintiff here) filed his motion in writing in said cause, in which he moved the court to grant him a reasonable allowance for his services, and for the services of his attorney, William C. Jones, and to tax said allowance as costs in the proceeding, and to declare the same as a lien against the real estate involved in that litigation. At the October term, 1893, to wit, November 18, 1893, the court sustained the motion, and made an order allowing plaintiff the sum of $2,000 against said minors, and directing that the same, if not otherwise paid, be recovered out of the interest in the real estate belonging to them, and which was involved in the will contest. The minor defendants were not served with notice of the filing of said motion. An appeal from that judgment was taken by said minor defendants to the St. Louis court of appeals, and that court on May 22, 1894, rendered its opinion affirming the judgment of the circuit court as to the allowance of $2,000 to the guardian ad litem, but reversed that part of the judgment which provided, "if the same be not otherwise paid, that then the same shall be recovered out of the interest of said minor defendants in the following described real estate," and awarding special execution. Walton v. Yore, 58 Mo. App. 562. This action is predicated upon the judgment rendered by the circuit court in that case, and which was affirmed by the St. Louis court of appeals. On the trial of the case in hand the facts substantially as herein stated were made to appear. The case was tried by the court, and, at the close of plaintiff's evidence, the defendants asked the court to declare the law to be as follows: "That, under the pleadings and evidence, the plaintiff is not entitled to recover." The court refused to so declare the law, and defendants duly excepted. At the close of all the evidence, defendants asked the court to declare the law to be as follows: "The court declares the law to be that, under the pleadings and the evidence in the case, the allowance or judgment sued on by plaintiff in this action is void, because the courts rendering the same had no jurisdiction of the persons of defendants against whom it was rendered, or of the subject-matter thereof, in the action in which it was rendered, for the purpose of rendering the same; and the judgment as rendered is contrary to the provisions of section 30, art. 2, of the constitution of Missouri; and that, therefore, a verdict should be found herein in favor of the defendants." This declaration of law was also refused, and defendants duly excepted. On March 5, 1895, the...

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12 practice notes
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...20 Wall. U.S. 655; Turner v. Wade, 254 U.S. 64; Norwood v. Baker, 172 U.S. 269; Embree v. Road District, 240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey......
  • Hunt v. Searoy
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1902
    ...into court was sufficient reason for not bringing his body into court, it was no excuse for not giving him notice. In Jones v. Yore, 142 Mo. 38, 43 S. W. 384, an allowance of fees to a guardian ad litem, without notice to the minor, was held to violate section 30, art. 2, Const. 1875, and t......
  • Womach v. City of St. Joseph
    • United States
    • United States State Supreme Court of Missouri
    • February 22, 1907
    ..."Due process of law" means law in the regular course of administration through the courts. Jones v. Yore, 142 Mo., loc. cit. 44, 43 S. W. 384. The term 100 S.W. 447 "due process of law" is equivalent to the term "the law of the land," a term as old as Magna Cha......
  • Woodling v. Westport Hotel Op. Co., No. 30081.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1932
    ...7225, 7243 and 7247, R.S. 1919; Cornet v. St. Louis County, 240 S.W. 107; St. Louis v. Railroad, 278 Mo. 205, 211 S.W. 671; Jones v. Yore, 142 Mo. 38, 45 S.W. 384; State ex rel. Hurwitz v. North, 304 Mo. 607; State v. Jones, 306 Mo. 446; McManis v. Burrows, 280 Mo. 327; Wilcox v. Phillips, ......
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26 cases
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...20 Wall. U.S. 655; Turner v. Wade, 254 U.S. 64; Norwood v. Baker, 172 U.S. 269; Embree v. Road District, 240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey......
  • St. Louis Union Trust Co. v. Kaltenbach, No. 39268.
    • United States
    • Missouri Supreme Court
    • March 5, 1945
    ...recognizing allowance to a guardian ad litem for counsel fees in a suit to construe a will. Walton v. Yore, 58 Mo. App. 562; Jones v. Yore, 142 Mo. 38, 43 S.W. 384; Jones v. Yore, 158 Mo. 83, 57 S.W. 1134. (3) The amounts allowed for counsel fees to Kaltenbach, administrator c.t.a., and to ......
  • St. Louis Union Trust Co. v. Fitch, No. 39479.
    • United States
    • Missouri Supreme Court
    • October 1, 1945
    ...v. Smith, 5 Mo. App. 427; In re St. Louis Inst. of Christian Science, 27 Mo. App. 633; Paxson v. MacDonald, 97 Mo. App. 165; Jones v. Yore, 142 Mo. 38; State ex rel. v. Dearing, 180 Mo. 53, 79 S.W. 454; In re Richards, 333 Mo. 907, 63 S.W. (2d) 672; Trustees of Internal Improvement Fund v. ......
  • Matter of Phi Fathers Ed. Assoc., No. 27246.
    • United States
    • Missouri Court of Appeals
    • June 17, 1947
    ...ex rel. v. Smith, 5 Mo. App. 427; Watkins v. McDonald, 70 Mo. App. 357; Paxson v. MacDonald, 97 Mo. App. 165, 70 S.W. 1101; Jones v. York, 142 Mo. 38, 43 S.W. 384; Chilton v. Drainage District, 228 Mo. App. 4, 63 S.W. (2d) 421. (2) The designation of the respective offices held by the petit......
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