Koehler v. Bernicker

• Decision Date: 31 October 1876
• Citation: 63 Mo. 368
• Parties: LOUIS KOEHLER, Plaintiff in Error, v. JOHN L. BERNICKER, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 368

LOUIS KOEHLER, Plaintiff in Error,

v.JOHN L. BERNICKER, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to St. Louis Circuit Court.

Eber Peacock, for Plaintiff in Error, cited: 2 Kent's Com. §§ 130, 131; Alexander vs. Warrance, 17 Mo. 229; Jackson vs. Johnson, 5 Cow. 74; R. C. 1855, p. 1223, § 7; p. 1218, § 7; Ellington vs. Moore, 17 Mo. 424.

R. S. MacDonald, for Defendants in Error, cited: Bernicker vs. Miller, 44 Mo. 102; Miller & wife vs. Bernicker, 46 Mo. 194; Sto. Eq. §§ 895, 896; 10 Mo. 100; 37 Mo. 199.SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff brings ejectment for the undivided one-seventh of the west half of the east half of the northeast quarter of section 7, T. 45, R. 6, east, claiming the interest sued for in right of his wife.

In 1859, Laura Lick was one of the defendants in a partition suit, instituted in the St. Louis Court of Common Pleas by John L. Bernicker, et al. vs. Frederick Claus, et al., wherein it was sought to have division made of the east half of the above quarter section. Service of process was duly had on the defendants, and they also appeared by attorney. Interlocutory judgment went on May 24th, 1860, that partition be made. Commissioners were appointed who allotted to Frederick Claus in severalty the east half of the tract last mentioned, and upon their reporting that the west half of said tract was not susceptible of division, the court confirmed their report and ordered the sale of that tract. This order of sale occurred October 31st, 1860. On the 8th of July, 1860, and after service of process, appearance by attorney, and the rendition of the interlocutory decree, as above stated, Laura Lick intermarried with the plaintiff, but no suggestion of the marriage was made, nor was he made a party defendant. In the next succeeding December the property ordered to be sold was sold by the sheriff to Bernicker, defendant, the sale approved, and the deed made to him. A motion to set aside the sale was filed, overruled, and, on appeal taken to this court, the judgment was affirmed.

There was issue born of the marriage referred to, May 10th, 1861.

In October, 1858, a suit had been brought for partition of the same land, in the St. Louis land court, by Peterson et al. vs. Bernicker, Laura Lick, et al. Service of process was had on the defendants in this case also, and they likewise appeared by attorney, as shown by the record. In March, 1861, Bernicker filed an amended answer, and the result of the matter was, that on final decree the west half of the land sought to be divided, was allotted to Bernicker in severalty, and the residue of the land was ordered to be sold. This occurred in February, 1862. Bernicker purchased this interest also. The marriage of plaintiff was not suggested in this suit, nor was he served with process, nor did he appear thereto.

The records of both the common pleas and land court, as well as the sheriff's deed, were read in evidence by defendants, and though objected to, no ground of objection was stated.

It is claimed by the plaintiff's counsel that the sheriff's return of service is wholly insufficient as to Laura Lick. The service, as to her, in the common pleas court is undeniably irregular, but our statute of jeofails (Wagn. Stat. 1036, § 19) will perhaps cure any seeming defect of this sort; and if this were not so, still the record...