McClure v. Farthing

• Decision Date: 31 October 1872
• Citation: McClure v. Farthing, 51 Mo. 109 (Mo. 1872)
• Parties: GRANVILLE L. MCCLURE, Defendant in Error, v. S. B. FARTHING, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

51 Mo. 109

GRANVILLE L. MCCLURE, Defendant in Error,

v.S. B. FARTHING, et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Montgomery Circuit Court.

R. W. Jones, for Plaintiff in Error, cited Revely vs. Skinner, et al., 33 Mo. Rep., pages 98 and 99; 5th Howard, P. R. 341.

Sanders & Carkener, for Defendants in Error.

In the “agreement” there is no admission that the plaintiff's case was proved, or that any fact on which it depended was true. The sense of the agreement is “that the witnesses would swear in this case as in the one just tried,” not that plaintiff's witnesses had proved a singly fact.

The case of Revely vs. Skinner, 33 Mo., p. 98, is not therefore in point. The error in that case is that the court assumed an issuable fact to be true, although the answer of the guar dian put it in issue, and the court has no proof, either one way or the other, and the acts condemned in the quotations from the case in the 5th How. P. Repts., were by agreement between the guardian and plaintiff to be considered as admitted or as established by less than legal proof. The gist of that decision is, that the guardian shall not usurp the province of the court or jury. The records of this case disclose nothing done contrary to the doctrine of that.

BLISS, Judge, delivered the opinion of the court.

Some of the defendants in this cause were minors and answered by guardian ad litem, and during its pendency the attorneys for the plaintiff and for the other defendants, made an agreement in writing stipulating that “a final decree should be entered in the cause for the plaintiff upon the trial and evidence adduced in the other cause tried by the court, in which a decree was entered for plaintiff; the evidence and points of controversy upon the title being substantially similar.” It was farther stipulated that if the former decree should be reversed,...