Jones v. Yore

• Decision Date: 07 December 1897
• Citation: 142 Mo. 38,43 S.W. 384
• Parties: JONES v. YORE et al.
• Court: Missouri Supreme Court

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 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 court found the issues joined herein in favor of the plaintiff, and rendered judgment against the defendants for the sum of $2,146, that being the amount of the judgment sued upon together with accrued interest. Defendants then filed motions for a new trial, and in arrest, which were overruled, and they perfected their appeal.

It is insisted by defendants that the circuit court had no jurisdiction of either the subject-matter of the motion or the persons of the minor defendants, for the purpose of rendering the money judgment which it rendered against them in the will suit; that the effect of the judgment was to deprive them of their property without due process of law, contrary to section 30, art. 2, of the state constitution, and for that reason the judgment was void, and could not lawfully be made the basis of another action; and that the judgment of the court below in this case is likewise violative of the same constitutional provision, and void also. "Due process of law" and "law of the land" are synonymous terms, and mean the same. There are many definitions of "due process of law," which, while differing in the language used, do not differ in their scope and meaning. The better and larger definition of "due process of law," says Chancellor Kent (2 Kent, Comm. 13), "is that it means law in the regular course of administration, through courts of justice." In Westervelt v. Gregg, 12 N. Y. 212, it was said: "In judicial proceedings, due process of law requires notice, hearing, and judgment." Mr. Justice Cooley, in his work on Constitutional Limitations (6th Ed. p. 491), says: "Individual citizens require protection against judicial action, as well as against legislative; and perhaps the question, what constitutes due process of law? arises as often when judicial action is in question as in any other cases. * * * The proceedings in any court are void if it wants jurisdiction of the case in which it has assumed to act. Jurisdiction is, first, of the subject-matter; and, second, of the person whose rights are to be passed upon. A court has jurisdiction of any subject-matter if, by the law of its organization, it has authority to take cognizance of, try, and...