Ogden v. Auer

• Decision Date: 15 February 1916
• Docket Number: No. 17539.,17539.
• Citation: 184 S.W. 72
• Parties: OGDEN v. AUER.
• Court: Missouri Supreme Court

184 S.W. 72

OGDEN v. AUER.

No. 17539.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Rehearing Denied March 31, 1916.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Mary Auer Ogden against Reno A. Auer. From a judgment for the defendant, the plaintiff appeals. Affirmed.

Plaintiff deeming herself entitled to a moiety of certain lands situate in the city of St. Louis, brought this action in equity in the circuit court of that city against defendant to establish her alleged status as an heir of Andrew Auer and Elizabeth A. Auer, to the end that she might, as her prayer was, have said lands partitioned between defendant and herself. Cast below, she has appealed.

Defendant is the son of said Andrew and Elizabeth A. Auer, who died on the 26th day of November, 1909, and on the 7th day of March, 1910, respectively. Said Andrew was seised in fee of a part of the lands sought to be partitioned. These lands he devised to the said Elizabeth, so that she at her death was seised of all of them, and, dying intestate, they passed by descent to defendant as her only heir, subject, as the contention of plaintiff herein is, to her alleged right to a moiety thereof.

Plaintiff's petition is in two counts; the substance and legal effect of each thereof will be found among other facts, regarded by us as decisive of the case, in our discussion of the law deemed applicable to the issues presented.

August Walz, Jr., and W. G. Carpenter, both of St. Louis, for appellant. Wm. F. Woerner, of St. Louis, for respondent.

FARIS, P. J. (after stating the facts as above).

Defendant, who is the respondent here, interposed below, among other defenses, that of former adjudication. In proof of this plea the files and the judgment in a former action between the identical parties were offered. From the petition in such former action it appears that on some day prior to October 24, 1911, but on what precise date does not appear, there was filed in the circuit court of the city of St. Louis, by plaintiff, an action in two counts: (a) For partition; and (b) for specific performance of a contract to adopt and for partition of the same lands now here in controversy and others not here involved. The first count in said last-mentioned petition averred in substance that plaintiff is the heir, for that she is the "natural-born daughter" of defendant's mother and father, and as such entitled to one-half of said lands. The prayer is for partition. The second count avers a promise made by defendant's parents to some unknown person for plaintiff's benefit, to adopt plaintiff as an heir; the performance of all duties as a child on plaintiff's part, and a prayer for specific performance of said promise to adopt, and for partition of the lands here in controversy.

The action above referred to, which we may for convenience style the "first action" to distinguish it from the case at bar (though it was not in fact the first action by two others — one in the probate court and another, which was dismissed in the circuit court), came on for trial on the 24th day of October, 1911. At the request of plaintiff, by motion to that end, the issue of whether plaintiff is the "natural-born daughter" of the Auers, born in lawful wedlock, was submitted to a jury. The evidence was heard, and on the 25th day of October the jury returned a verdict against plaintiff, in substance finding the fact to be, that plaintiff is not the natural-born child of the Auers, born in lawful wedlock. On October 28, 1911, plaintiff filed her motion for a new trial, which motion was by the court overruled on December 26, 1911, and judgment was thereupon rendered for defendant and against plaintiff on the first count of her petition, dismissing her bill. After the verdict and pending the motion for a new trial and on November 1, 1911, plaintiff dismissed the second count of her said first action, which said count is in all material respects a copy of the first count of the suit at bar. Likewise pending the motion for a new trial, and on the 3d day of December, 1911, the action at bar was filed.

From the judgment in the first action no appeal was taken, and whatever rights, if any, which were concluded thereby are obviously res adjudicata in this action. Leaving out of consideration the proceeding in the probate court which was dismissed, and the earlier action in the circuit court (even preceding that called here the first action which was likewise dismissed, and which it is plain, go only to show the divers attitudes and contradictory affidavits of plaintiff as well as the vexatious nature of this litigation), the point is strenuously urged, upon the facts stated, that the doctrine of res adjudicata precludes plaintiff from successfully maintaining this action.

Let us examine this question before we come to the merits. The only relief prayed for in each of these actions and in each count thereof was partition of the premises described in the first action and in this one. In the first action the right to a decree of partition was based upon the grounds: (a) That plaintiff is an heir of the Auers (from the fact averred that she is their child, born of them in lawful wedlock); and (b) that plaintiff was entitled to the specific performance of a contract made by the Auers with "some one acting for and in behalf of plaintiff," to legally adopt her as their child and heir.

In the case at bar likewise partition of the premises in controversy is the only relief sought, and the averred grounds upon which such partition is sought are: (a) That the Auers contracted and agreed with some unknown person "acting for and on behalf of this plaintiff," to take plaintiff and legally adopt her as their own child and heir, and (b) that plaintiff was reared by the Auers in the belief that she was their daughter; that they educated her as such and so held her out to others; that she rendered love and menial service to them for years as if she were their daughter, and in the belief that such blood relation actually existed; that through her said services rendered in the honest belief of such relationship, much of the identical property...