LeBourgeoise v. McNamara

• Decision Date: 22 March 1881
• Citation: 10 Mo.App. 116
• Parties: LOUIS L. LeBOURGEOISE ET AL., Defendants in Error, v. ISABELLA MCNAMARA, Plaintiff in Error.
• Court: Missouri Court of Appeals

10 Mo.App. 116

LOUIS L. LeBOURGEOISE ET AL., Defendants in Error,

v.ISABELLA MCNAMARA, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Mar. 22, 1881.

1. Reversioners not in possession nor entitled to possession are, under the statute, properly made parties to a partition suit.

2. Under the statute, a guardian ad litem may, when convinced that no defence can be made, stipulate that judgment for partition may be entered in accordance with the plaintiff's petition.

3. A writ of error coram nobis to correct errors which appear upon the face of the record is properly denied.

ERROR to the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

G. M. STEWART and PAUL BAKEWELL, for the plaintiff in error: The infant defendants were not proper parties to the action. They were not in possession, nor were they entitled to the possession of any part of the land until the death of the life tenant.-- Stevens v. Endres, 1 Green L. 271; Culver v. Culver, 2 Root, 278; Zeigler v. Gunn, 6 Watts, 106; Brown v. Brown, 8 N. H. 93. It was error to enter a decree upon the agreement filed. A guardian ad litem “has no power to waive proof, nor any right, without it, to consent to judgment.”-- Revely v. Skinner, 33 Mo. 101. “He has but one duty to perform, and that is to defend the action.”-- McClure v. Farthing, 51 Mo. 109. The Circuit Court should have granted the writ of error coram nobis.-- Calloway v. Nifong, 1 Mo. 156, 223; Ex parteToney, 11 Mo. 662; Powell v. Galt, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 381.

D. T. JEWETT, for the defendants in error.

THOMPSON, J., delivered the opinion of the court.

In 1874, a suit was brought in the St. Louis Circuit Court by Louis L. LeBourgeoise and Elizabeth C. LeBourgeoise, his wife, Charlotte Charless, William Walker and Mary Walker, his wife, William C. Ferguson, George C. Miller, Thomas H. Rector, and Margaret A. Johnson, against Thomas C. McNamara, Leonora E. McNamara, his wife, David Ross, and Walter, Victor, Bell, Arthur, and Lulu McNamara, minor children of Thomas C. and Leonora E. McNamara, for the partition of certain land lying in St. Louis County. These defendants appear to have been duly served with process, except Ross, whom we may leave out of consideration, because he afterwards came into court and disclaimed title. A. J. Quigley was appointed guardian ad litem of the infant defendants, and filed his consent to act as such. As attorney and guardian ad litem, he answered the amended petition for all the defendants except Ross, denying severally its allegations, which amounted to a denial that the plaintiffs had title to the land as claimed. Afterwards leave was granted to amend the petition so as to make John Q. A. Fritchie, who held the land in question as trustee for Mrs. Leonora E. McNamara and the infant defendants above named, a defendant, and an alias summons was ordered to issue for him, but there is nothing in the record to show that such summons was in fact issued, or that it was served upon him, except a recital in the decree which was afterwards made, that he had been duly summoned. No point, however, is made upon this.

Afterwards Quigley, as “attorney for defendants,” entered into a stipulation with the plaintiff's attorney, as follows: “It is agreed that judgment of partition, as prayed for, shall be entered against defendants except Sally Dodier, whose name is to be stricken from the petition,-- default as to J. Q. A. Fritchie,--commissioners to be appointed to report. In any report or partition they may make, the said defendant Leonora E. McNamara is to have the benefit of all buildings put upon the premises by her, but not those by her tenants.” In pursuance of this stipulation, the court entered an interlocutory decree for partition, and commissioners were appointed. When the report of the commissioners came in, Quigley indorsed upon it the following: “I appear for the defendants, waive any exception to the within report, and consent that it may be approved, this sixth day of July, 1875. A. J. Quigley, attorney for defendants.” Such further proceedings were afterwards had that part of the land was divided among the parties in severalty, and part of it sold.

Afterwards, on December 1, 1879, the defendant, Isabella McNamara, filed her petition before the court in which such proceedings were had, her petition in the nature of a writ of error coram nobis, which petition was, by the court, dismissed. She then sued out the present writ of error, alleging that she had come of age within three years before the suing out of the writ of error, and supporting this statement by affidavits.

1. The first position taken by the plaintiff in error is, that the decree against the infant defendants was erroneous because they were not proper parties to the partition proceedings, being mere reversioners, not in possession nor entitled to possession; and some decisions from other States are cited in support of this doctrine. We need not notice these decisions, because our statute, under which these proceedings were had, provides in terms that the petition “shall set forth the names, rights, and title of all parties interested therein, so far as the same can be stated, including persons entitled to the reversion, remainder, or inheritance, and of every person who upon any contingency may be, or...