Jones v. Yore

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

43 S.W. 384

142 Mo. 38

Jones v. Yore et al., Appellants

Supreme Court of Missouri, Second Division

December 7, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

J. D Johnson for appellants.

(1) This appeal involves a constitutional question, and the same was properly transferred from the court of appeals to this court. State v. St. Louis Court of Appeals, 97 Mo 276; Bennett v. Railroad, 105 Mo. 644; Baldwin v. Fries, 103 Mo. 386; State v. Rombauer, 101 Mo. 499; State v. Francis, 95 Mo. 44; Railroad v. Siefert, 41 Mo.App. 35; Const. of Mo., art. VI, sec. 12. (2) The circuit court had no jurisdiction of the subjectmatter of the motion on which the money judgment against the minor defendants was rendered in the will case, for the purpose of rendering that judgment; hence that, as well as the judgment in the case at bar, is void. As to want of jurisdiction of the subject-matter, see State v. Smith, 104 Mo. 419; State v. Neville, 110 Mo. 345; Burke v. City, 118 Mo. 319; R. S. 1889, sec. 8888; McMahon v. McMahon, 100 Mo. 97; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314; Harris v. Hays, 53 Mo. 96; Babb v. Bruere, 23 Mo.App. 606; R. S. 1889, secs. 2005, 2006, 2007, 7140, 7141, 7182. As to want of jurisdiction over the persons of the minor defendants, see Roberts v. St. Louis, 126 Mo. 460; Anderson v. Brown, 9 Mo. 646; Roach v. Burns, 33 Mo. 319; Sevier v. Roddie, 51 Mo. 580; Napton v. Leaton, 71 Mo. 358; Bradley v. Welch, 100 Mo. 258; Freeman on Judg. 499; Thompson v. Railroad, 110 Mo. 153; George v. Middough, 62 Mo. 549. (3) The court below having had no jurisdiction of the subject of the action or the persons of the minor defendants, at the time it rendered the money judgment against them in the will case, the effect of that judgment, as well as the judgment here, was to deprive the defendants of their property without due process of law, contrary to section 30, article II, of the State Constitution. Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 519; Westervelt v. Gregg, 12 N.Y. 209; 3 Am. and Eng. Ency. of Law, pp. 714, 715; Cooley's Const. Lim. [6 Ed.], pp. 356, 459. (4) The judgment against the minor defendants in the will case was void, because it was in part for services rendered by the attorney whom the guardian ad litem employed to assist him in the defense of that case, while the guardian had no power to bind his wards, by contract or otherwise, to the payment of such services. That avoided the judgment at bar. Houch v. Bridwell, 28 Mo.App. 644; Dillon v. Bowles, 77 Mo. 603. (5) The two judgments in question were also void because the minor defendants were deprived of their right to a trial by jury of the question of liability to plaintiff for the $ 2,000 adjudged against them in the will case, contrary to the provisions of section 28, article II of the State Constitution.

B. Schnurmacher for respondent.

(1) Services performed by a guardian ad litem, commissioner, amicus curiae, or other person appointed by the court, are not voluntarily rendered, and the court making such appointment possesses the inherent power, independent of express statute, of allowing the person so aiding it a reasonable compensation for his services, to be taxed against the proper party. Walton v. Yore, 58 Mo.App. 562; Kerbaugh v. Vance, 5 Lea (73 Tenn.), 113; Parsons v. Young, 7 Lea (75 Tenn.), 293; Wilbur v. Wilbur, 138 Ill. 446; Cole v. Superior Court, 63 Cal. 86; McCue v. O'Hara, 5 Redf. (N. Y.) 336; Holloway v. McIlhenny Co., 27 Tex. 657; Hall v. Washington Co., 2 G. Green (Iowa), 473; Webb v. Auditor, 6 Ind. 13; Redf. on Practice in Surrog. Courts, p. 95; Robinson v. Fidelity Trust Co., 11 S.W. 806; In re St. Louis Inst. Christian Science, 27 Mo.App. 633; Roberts v. Railroad, 33 N.Y.S. 685. (2) And the court may make such allowance a lien against the property protected, when the property is before the court. Cole v. Superior Court, 63 Cal. 86; Persons v. Young, 7 Lea (75 Tenn.), 293; Gott v. Cook, 7 Paige, 521. (3) "The proper defense of a suit against an infant is a necessary, for the cost of which his estate may be liable. A request for the defense of such a suit may be presumed from the necessities of the case." Nagel v. Schilling, 14 Mo.App. 576. (4) The appellants were not entitled to a jury. A party has no right to a jury upon the trial of a disputed fact involved in a mere motion. Hensley v. Baker, 10 Mo. 157.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action by plaintiff to recover against defendants the sum $ 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 4, 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 "that 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 et al., 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 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 court 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, article II of the Constitution of Missouri; and that therefore a verdict should be found in favor of the defendants herein." This declaration of law was also refused and defendant 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, article II 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...