Miller v. Davis

• Decision Date: 31 October 1872
• Parties: FREDERICK B. MILLER et al., Defendants in Error, v. FRANKLIN DAVIS, Plaintiff in Error.
• Court: Missouri Supreme Court

50 Mo. 572

FREDERICK B. MILLER et al., Defendants in Error,

v.FRANKLIN DAVIS, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Perry Circuit Court.

Robinson & Clardy, for plaintiff in error.

Equity follows the law, and the bill shows upon its face that the grantor of defendants in error, William Davis, was by law precluded from owning or entering the land in question. Equity, therefore, affords no relief either to said William Davis or the defendants in error, who are his privies in estate. (Sto. Eq., 3d ed., §§ 6, 12, 13, 16, 17, 64; State v. Matson, 38 Mo. 489; Dilly v. Barnard, 8 Gill & J. 171; Field v. Myers, 37 Mo. 434; 28 Mo. 335.)

Cissell & Noell, with Johnson, for defendants in error.

ADAMS, Judge, delivered the opinion of the court.

This case is here by writ of error. The original judgment was rendered in 1857, and at the time it was rendered the defendant was a minor of tender years, and claims that three years have not expired since his majority. Before suing out this writ of error, defendant appeared in the Circuit Court and filed a motion to set aside the judgment on the grounds of alleged errors in the proceedings. Whether this motion ought to have been made or could have been entertained after the lapse of so many years, it is unnecessary to decide. It is sufficient that the case is here within three years after the defendant became of age.

An infant has three years after he becomes of age, under our statutes, to sue out of this court a writ of error on the final judgment of a Circuit Court. There has been no plea of limitation filed in this court against this writ of error, and we must therefore assume that the three years have not expired.

When a case is brought here without any exceptions or motions in arrest or for a new trial, we can only look at the record proper for errors, and can only reverse for such as are not cured by the statutes of amendments. When a plaintiff by his own petition shows that he has no standing in court, and yet obtains a judgment against the defendant, that is an error which this court must entertain and for which the judgment must be reversed.

The facts stated in this petition are, substantially, that the defendant's father, under the laws of Congress, had entered all the forty-acre tracts of land he was entitled to enter, and, not being able to enter the forty acres in dispute in his own name, made the entry in the name of his infant son, the defendant. The petition then alleges...