Nevins v. Gilliland

• Decision Date: 19 November 1921
• Citation: 234 S.W. 818,290 Mo. 293
• Parties: LEILA ADA NEVINS v. PALMER GILLILAND et al., Appellants
• Court: Missouri Supreme Court

234 S.W. 818

290 Mo. 293

LEILA ADA NEVINS v. PALMER GILLILAND et al., Appellants

Supreme Court of Missouri, Second Division

November 19, 1921

Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.

Affirmed.

Moore Barrett & Moore for appellants.

(1) The court erred in declaring the plaintiff herein an heir of John Gilliland, deceased. (2) The court erred in finding the issue for plaintiff, as such finding illegitimatized a child born in lawful wedlock. (3) The court erred in admitting evidence as to statements of the purported father and the mother of the plaintiff, as to the plaintiff being an illegitimate child of John Gilliland and Mary Reed. (4) Proof that a father always treated plaintiff and her sister as his daughters, that he called the plaintiff's children his grandchildren, does not establish paternity. Radelle v Teo, 6 La. Ann. 129. A child born in lawful wedlock and recognized by the father is held conclusive proof of legitimacy. Bower v. Graham, 225 S.W. 978. Birth in lawful wedlock is prima-facie evidence of legitimacy, and must be overcome by the strongest testimony. If marriage be proven nothing can impugn the legitimacy of the issue short of proof of facts showing it to be impossible that the husband could be the father. Patterson v. Gains, 6 U.S. 55. Non-access not probable by husband or wife must be shown. 21 Ency. Evidence, 240.

Jas. V Pitts and Patterson & Page for respondent.

(1) The statute is broad enough to include an adulterine bastard -- that is, a child born of a married woman by a man not her husband. Sec. 312, R. S. 1919; Bower v. Graham, 225 S.W. 978; Drake v. Hospital, 266 Mo. 1; Ives v. McNicoll, 59 Ohio St. 402; Breidenstein v. Bertram, 198 Mo. 328. (2) This is a suit at law. No issues of an equitable nature were made by the pleadings. No declarations of law were asked or given. The finding of the trial court upon the issues of fact has all the validity of the verdict of the jury, and if supported by the evidence is not subject to review on appeal. Watson v. Priest, 9 Mo.App. 263; Smith v. Royse, 165 Mo. 654; Heynbrock v. Hormann, 256 Mo. 21; Woods v. Johnson, 264 Mo. 289; Holloway v. Holloway, 97 Mo. 628; Coffman v. Gates, 142 Mo.App. 648. (3) The only issue tried by the court was that of the paternity of plaintiff. On this issue of fact the evidence was ample to sustain the finding of the court on every point: (a) As to the marriage of Gilliland to plaintiff's mother; (b) as to the recognition of plaintiff by Gilliland as his daughter; and (c) as to the fact that Gilliland was actually the father of plaintiff. Drake v. Hospital, 266 Mo. 1; Bower v. Graham, 225 S.W. 978; Breidenstein v. Bertram, 198 Mo. 328; Ives v. McNicoll, 59 Ohio St. 402; Adgar v. Ackerman, 115 F. 124. (4) Where a case is tried by the court sitting as a jury, and no declarations of law are asked or given, and both competent and incompetent testimony has been omitted, if there is in the record substantial competent evidence to support the finding an appellant court will indulge the presumption that the trial court based its finding upon the competent evidence and disregard the incompetent. Lewis v. Frankle, 158 Mo.App. 262; Bank v. Wodz, 197 Mo.App. 686; Laumier v. Gehner, 110 Mo. 122; McCullough v. Ins. Co., 113 Mo. 606; Cavell v. Tel. Co., 164 Mo.App. 630; State ex rel. West v. Diemer, 255 Mo. 336; Jackson v. Jackson, 80 Md. 176; Smith v. Smith, 140 Wis. 599.

RAILEY, C. White and Reeves, CC., concur.

OPINION

RAILEY, C. --

We gather, from what was said at the oral argument of this cause, in connection with the abstracts and briefs on file here, that the case was originally commenced in the Circuit Court of Ozark County, and transferred by change of venue to Greene County, Missouri. The case was tried in the last named court, on an amended petition filed March 13, 1920.

Said petition, among other things, alleges that on February 2nd, 1919, John H. Gilliland, father of plaintiff, died intestate, in Ozark County, Missouri, the absolute owner of the northeast quarter of Section 34, and the northwest quarter of Section 35, also all of that part of the southwest quarter of the southwest quarter of Section 26 lying on the east side of the main channel of Turkey Creek, containing 35 acres; all in Township 24, of Range 15, of Ozark County aforesaid, and containing in all 235 acres, more or less.

It is averred that John H. Gilliland left surviving him the defendant, Phronia Gilliland, his widow, who duly elected to take a child's part; that plaintiff, Lelia Ada Nevins, and the defendants, Palmer Gilliland, Ranie Gilliland, Parley Smith and Olga Gilliland, are the only children and only heirs at law of the said John H. Gilliland, deceased; that the estate of said John H. Gilliland is in process of administration in the Probate Court of Ozark County; that there are ample assets in the hands of the administator belonging to said estate to pay all claims and demands against the same; that said estate is solvent, looking only to the personal property; that plaintiff and defendants are owners as tenants in common of the land aforesaid, each owning an undivided one-sixth interest thereof; that all of the defendants have appeared and answered to the merits of this cause; that on account of the number of owners, the location and value of said lands, the same being rough, untillable and of little value, the same cannot be divided in kind between the parties aforesaid, without injury to their respective interests.

The petition concludes with a prayer that partition be made of said land among plaintiff and defendants; that the court decree the same is not susceptible of being divided in kind; that said land be ordered sold by the Sheriff of Ozark County, for partition; that after paying all costs and allowances, the proceeds remaining from the sale of said land be divided and partitioned among the owners thereof, as their respective interests may be found by the court. General relief is also prayed for in the petition.

All of the defendants answered with a general denial.

The trial was commenced on January 30th, 1920, before Judge Kirby, without a jury. The following occurred at the commencement of the trial:

"By the Court: Before the introduction of any evidence in this cause it is agreed by and between the plaintiff and defendants that there is no controversy between the parties as to any of the material facts of the case, except defendants deny that the plaintiff has any interest whatever in the land, partition of which is sought. This admission is made subject to the right of the plaintiff to amend her petition so as to set up any facts affecting the shares of any of the parties which may have occurred since the institution of the suit."

The undisputed evidence discloses that plaintiff was born on February 27th, 1876, at the home of John H. Gilliland in Ozark County, Missouri; that Andrew Jackson Reed was married to Mary E. Hooper, on February 9, 1873; that in September or October, 1874, said Reed and wife moved to the home of John H. Gilliland, who was then a bachelor, occupying a house with one room, on said Gilliland's land; that Reed and wife, with said Gilliland, occupied this one-room house, during the winter of 1874-5. The defendants read in evidence the deposition of Jack Reed, in which he testified, that plaintiff was born after he and his wife moved to Gilliland's home; that from the last of April, 1875, to the last week in June of said year, he was in Nevada, Missouri, 150 miles from John H. Gilliland's home; that he did not live with his wife during said period. Reed further testified, without objection, that after plaintiff was born, while they were at the Gilliland home, she cried one morning and he (Reed) "sorta spanked it;" that John H. Gilliland told him not to do it; that he said to Gilliland, "What is it your business whether I whip it or not?" and Gilliland told him that plaintiff was not his child; that plaintiff's mother was present and heard this talk; that during the same day he had another talk with Gilliland and his wife; that Gilliland told him the plaintiff was his (Gilliland's) child; that he asked his wife if that was true, and she said it was; that he afterwards left her and obtained a divorce from her in April, 1879; that he never claimed plaintiff as his child; that John H. Gilliland claimed she was his child.

The following appears in defendant's statement of the case:

"Shortly after the wife took up her abode with Gilliland, she gave birth to another child, which was named Leora and which is admitted to be the child of Reed. Later another child was born of her, which was named Palmer, and who is admitted to be a son of John H. Gilliland. After the birth of these children, and on November 9, 1886, John H. Gilliland and Mary E. Reed were married, and they continued to live together until the year 1890, when the mother died.

"During all the time Gilliland and his said wife, and the two girls Leora and Lelia, and the baby, Palmer, when he was born later, lived together as one family. Gilliland supported, educated and cared for them all alike, and referred to them all as his children. When the two girls grew up, he still looked after them and called them his children.

"Gilliland died in about 1918, and after his demise this suit was filed the plaintiff claiming an interest, and such issue being submitted to the court, the...