McClure v. Farthing

Decision Date31 October 1872
PartiesGRANVILLE L. MCCLURE, Defendant in Error, v. S. B. FARTHING, et al., Plaintiffs in Error.
CourtMissouri Supreme Court

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, that rendered in this cause should be set aside. A general judgment was rendered upon this agreement, against all the defendants, and afterwards the guardian ad litem of the minors presented his motion to set it aside, as having been unauthorized by him and unwarranted by law, even had he given his consent, but the motion was overruled.

A guardian ad litem has but one duty, and that is to defend the action. Revely vs. Skinner, 33 Mo., 98. It is un necessary to say that when there are several actions pending between the same parties, involving precisely the same facts, the guardian may not agree...

To continue reading

Request your trial
22 cases
  • Kennard v. Wiggins
    • United States
    • Missouri Supreme Court
    • July 25, 1941
    ...Railways Co. (Mo. Sup.), 220 S.W. 677, l.c. 679; 9 A.L.R. 1076; Fink v. K.C. Southern R. Co., 161 Mo. App. 314, 143 S.W. 568; McClure v. Farthing, 51 Mo. 109; McMurtry v. Fairley et al., 194 Mo. 502, 91 S.W. (2d) 902; Scott et al. v. Royston et al., 223 Mo. 568, 123 S.W. 454; 31 C.J., p. 11......
  • Spotts v. Spotts, 30406.
    • United States
    • Missouri Supreme Court
    • December 20, 1932
    ...must do for the infant what he would do for himself. He must defend the action. Reineman v. Larkin, 222 Mo. 156; McClure v. Farthing, 51 Mo. 109. (4) There is nothing before this court except the record proper, and no error is apparent on its face. No motion for a new trial was filed. No ap......
  • Spotts v. Spotts
    • United States
    • Missouri Supreme Court
    • December 20, 1932
    ...The guardian must do for the infant what he would do for himself. He must defend the action. Reineman v. Larkin, 222 Mo. 156; McClure v. Farthing, 51 Mo. 109. (4) is nothing before this court except the record proper, and no error is apparent on its face. No motion for a new trial was filed......
  • Kennard v. Wiggins
    • United States
    • Missouri Supreme Court
    • July 25, 1941
    ...Railways Co. (Mo. Sup.), 220 S.W. 677, l. c. 679; 9 A. L. R. 1076; Fink v. K. C. Southern R. Co., 161 Mo.App. 314, 143 S.W. 568; McClure v. Farthing, 51 Mo. 109; McMurtry v. Fairley et al., 194 Mo. 502, 91 902; Scott et al. v. Royston et al., 223 Mo. 568, 123 S.W. 454; 31 C. J., p. 1143, Se......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT