Lebourgeoise v. McNamara

• Decision Date: 30 April 1884
• Parties: LEBOURGEOISE et al. v. MCNAMARA et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

82 Mo. 189

LEBOURGEOISE et al.

v.MCNAMARA et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1884.

Error to St. Louis Court of Appeals.

AFFIRMED.

G. M. Stewart for plaintiffs in error.

The infant defendants were improperly made parties to the partition proceedings, and there should have been no decree affecting their rights to the land. Stevens v. Endres, 13 N. J. L. 271; Culver v. Culver, 2 Root 278; Zeigler v. Grum, 6 Watts 106; Brown v. Brown, 8 N. H. 93. It was error to enter a decree upon the stipulation filed. A guardian ad litem has no power to waive proof, nor any right without it to consent to judgment or to the confirmation of the commissioner's report. Revely v. Skinner, 33 Mo. 101; McClure v. Farthing, 51 Mo. 109; Howell v. Mills, 53 N. Y. 322; Kinckerbacker v. De Forrest, 2 Paige 304; Walton v. Coulson, 1 McLean 120; McClay v. Norris, 9 Ill. 370; Waterman v. Lawrence, 19 Cal. 210; Cartwright v. Wise, 14 Ill. 417; Jones v. Jones, 56 Ala. 612. The writ of error coram nobis should have been granted. Calloway v. Nefong, 1 Mo. 223; Ex parte Toney, 11 Mo. 662; Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 381; Ex parte Gray, 77 Mo. 160; Higbie v. Comstock, 1 Den. 652.

D. T. Jewett for defendants in error.

The guardian ad litem had under the statute the power exercised by him in the partition proceeding. 2 Wag Stat., p. 973, §§ 48, 49.

MARTIN, C.

This was an action for the partition of certain lands in St. Louis and was begun in 1874. The only question necessary to be considered relates to the power of guardians ad litem in partition cases. The defendants, Walter, Victor, Belle, Arthur and Lulu McNamara were minors and the court appointed A. J. Quigley as guardian ad litem to represent them in the suit. The appointment was accepted and a general answer filed putting in issue the material allegations of the petition. Afterwards the following stipulation signed by counsel in the case was filed:

“It is agreed that judgment of partition, as prayed for, is to be entered against defendants, except Sally Dodier, whose name is to be stricken from the petition--default as to J. Q. A. Fritchey--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 up on the premises by her, but not those by her tenants.

D. T. JEWETT,

Attorney for Plaintiffs.

A. J. QUIGLEY,

Attorney for Defendant.”

In May, 1875, the court rendered its decree in partition which reads as follows:

“Now, at this day come the plaintiffs and defendants by their respective attorneys, but the defendant, John Q. A. Fritchey, though duly summoned and called, comes not, but makes default. Wherefore, it is ordered that the petition herein be taken against him as confessed, and thereupon the cause is submitted to the court upon the evidence and proofs, and also a stipulation filed this day by said parties, and the court being fully advised thereof, doth order that the name of Sally Dodier, defendant, be stricken from the petition by consent of the attorneys for plaintiffs and defendants, and doth find, adjudge and decree, that the plaintiffs and defendants are the owners in fee and tenants in common, and in possession of the following real estate, to-wit:” (Here the property is described.) It then says that plaintiffs are entitled to have partition made, and the said several parts set off to them in severalty as prayed for, etc.

Although this decree recites that the cause was submitted upon the ““evidence and proofs,” it, also, recites that it was submitted upon “a stipulation filed this day by said parties.” As this stipulation dispensed with proofs, so far as the minors were concerned, it is impossible to resist the inference that the decree, as to them, must have been principally rendered in pursuance of the stipulation which was intended to take the place of proofs.

On the 1st of December, 1879, Isabella McNamara, one of the infant defendants, having attained her majority, filed a petition in the cause in which she set out the proceedings already had in the case and the title of the minor defendants, and asked for a writ of error coram nobis. Upon denial of the application she sued out a writ of error to the St. Louis court of appeals. The decree in that court was affirmed, and she prosecutes her present writ of error. LeBourgeoise v. McNamara, 10 Mo. App. 116. The power of a guardian ad litem to admit material facts in the conduct of a trial, or to control the case entrusted to his charge with as full authority as the minor could, if he were of age, has been denied by our Supreme Court. Revely v. Skinner, 33 Mo. 98; McClure v. Farthing, 51 Mo. 109. These decisions cannot govern proceedings in partition, the legislature having assumed to direct a different rule in such cases. A guardian ad litem in a partition proceeding seems to be clothed with the full powers of his ward after removal of disabilities. Sections 48 and 49 of the statute on partition...