Padgett v. Smith

• Decision Date: 29 June 1907
• Citation: 206 Mo. 303,103 S.W. 943
• Parties: PADGETT v. SMITH.
• Court: Missouri Supreme Court

103 S.W. 943

206 Mo. 303

PADGETT v. SMITH.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. APPEAL — QUESTIONS REVIEWABLE — DECISIONS ON APPEAL FROM INTERLOCUTORY JUDGMENT—EFFECT.

Under Rev. St. 1899, § 806 [Ann. St. 1906, p. 769], providing that a failure to appeal from any decision before final judgment shall not prejudice the right of a party to have the same reviewed on appeal from the final judgment, a party on appeal from a final judgment in partition cannot require the court to review questions determined on the affirmance of an interlocutory judgment, on his appeal therefrom, except jurisdictional questions.

2. APPEARANCE — EFFECT — JURISDICTION OF THE PERSON.

Where a defendant was served with process and appeared and answered and went to trial, the question of the court's jurisdiction as to his person is closed.

3. INFANTS—ACTIONS.

Where an infant brought an action by his grandfather as guardian, and the court subsequently appointed a third person to act as guardian for the purposes of the case, the court had jurisdiction of the infant.

4. SAME — APPEAL — IRREGULARITIES IN PROCEDURE.

Under Rev. St. 1899, § 672 [Ann. St. 1906, p. 686], providing that no judgment for a party under 21 years of age, having appeared by attorney, shall be reversed for defects, etc., a judgment for an infant plaintiff in an action instituted by him by his grandfather as guardian will not be reversed on the ground that the grandfather was not guardian.

5. PARTITION—COURTS—JURISDICTION.

The circuit court, having general common-law and equity jurisdiction, has jurisdiction of a suit involving a resulting trust and a partition; the subject-matter being an equitable partition.

6. APPEAL—REVIEW — JURISDICTIONAL QUETIONS.

Assignments of error relating to duplicity in pleading, nonjoinder of parties, and misjoinder of causes of action, are assignments of error incident to the exercise of a rightful jurisdiction, and do not challenge the jurisdiction of the subject-matter, and, when reviewed on an appeal from an interlocutory judgment, cannot be reviewed on an appeal from the final judgment.

7. PARTITION—COSTS—STATUTES.

Under Rev. St. 1899, § 4422 [Ann. St. 1906, p. 2428], authorizing the court in a suit for partition to allow a reasonable fee to the attorney bringing the suit, etc., the court decreeing partition in a suit therefor may allow as

costs a reasonable fee for the attorney bringing the suit.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by Ervine F. Padgett, a minor, by his guardian, against James H. F. Smith. From a judgment for plaintiff, defendant appeals. Affirmed.

See 89 S. W. 886.

E. R. Bartlett and O. D. Jones, for appellant. Higbee & Mills and Smoot, Boyd & Smoot, for respondent.

LAMM, J.

This case is twin to that between the same parties, just disposed of. Padgett v. Smith, 103 S. W. 942. On March 24, 1905, there was lodged here the final judgment in the above-entitled cause, with an order granting an appeal. As said in the former case, the final judgment was rendered on the 15th day of November, 1904; while the interlocutory judgment in partition, the basis of the former appeal as well as writ of error, was rendered on the 10th day of November, 1903. After our mandate affirming that judgment went down, the commissioners appointed to make partition duly qualified and performed their duties, making partition in kind between the minor plaintiff, Padgett, and the defendant Smith. Their report, duly acknowledged, was filed and approved. Thereupon plaintiff's attorneys were allowed a fee to be taxed as costs, and the partition was made absolute. Prior to the final judgment, to wit, on the 14th day of November, 1905, defendant Smith filed a motion called a "motion to set aside the commissioners' report and for review." In this motion, under 18 subheads, he asked the chancellor to review the whole previous record of the case and to set aside the judgment in partition and the equitable relief awarded plaintiff, and moved the court to dismiss the cause of action because the court had no jurisdiction of the parties or of the subject-matter, because the court erred pending the proceeding in appointing John C. Mills guardian of the infant plaintiff, because the infant had no right to institute his suit by one Davis, his grandfather, as guardian, because the petition does not state facts sufficient to constitute a cause of action, because of a nonjoinder of the administrator of the estate of plaintiff's deceased mother (whose second husband was defendant), because defendant was the acting and qualified curator of the infant plaintiff (his stepson), and hence could not be sued by the infant on matters pertaining to said curatorship, and because there was a misjoinder of causes of action. An array of other alleged errors was set down, not material here, each and all of which were alleged to be sufficient grounds for setting aside the report. On hearing of the motion, the defendant "in support of said motion called attention to the entire record as embodied in the first bill of exceptions" (this bill of exceptions was before us in the proceedings on the writ of error), and rested. The plaintiff, in opposition to the motion offered in evidence the former motion for a new trial, having for its object the setting aside of the interlocutory judgment; also the motion in arrest of that judgment, the affidavit and bond for appeal therefrom, and the mandate of this court affirming that judgment. It will not be necessary to reproduce copies of said motions for a new trial and arrest. They, in legal intendment and effect, from corner to corner, covered the same grounds and pointed out the same alleged errors inventoried in the motion for a review and to set aside the commissioners' report. The court overruled the motion to set aside the commissioners' report, and defendant excepted. Thereupon final judgment was entered, as said, and defendant in due time filed a motion for a new trial under 23 subheads and covering 7 pages of print, the substance of which (barring, possibly, alleged error in the admission of testimony at the first trial), is the same as that of the motion to set aside the commissioners' report. This motion was overruled, and defendant excepted. Thereupon defendant filed a motion in arrest going to some of the same matter, which was overruled, and defendant excepted, had his exceptions allowed by a final bill of exceptions, and appealed.

Appellant assigns 17 specific errors as grounds for reversing the final judgment— more than one court would likely commit in any one case. His first assignment is that the court had no jurisdiction either of the parties or the subject-matter. Other assignments strike at errors committed by the trial court in the proceedings leading up to...