Padgett v. Smith

• Decision Date: 13 July 1907
• Citation: 103 S.W. 943,206 Mo. 303
• Parties: ERVINE F. PADGETT, a Minor, by Guardian, v. SMITH, Appellant
• Court: Missouri Supreme Court

103 S.W. 943

206 Mo. 303

ERVINE F. PADGETT, a Minor, by Guardian, v. SMITH, Appellant

Supreme Court of Missouri, First Division

July 13, 1907 ^[*]

Appeal from Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Affirmed.

E. R Bartlett and O. D. Jones for appellant.

(1) It is apparent on the record, and undisputed, that Geo. W Davis, who assumed to bring this action for the infant respondent, was not the curator of his estate, had never qualified or given bond as such or in any other capacity, and the court by its order of record so finds. Hence, Davis had no right to represent the infant or bring suit for him or to in any way meddle with the infant's property rights. Neither his position as grandfather nor as "guardian of the person" (for which he had not qualified) gave him any such right, and the infant was not therefore in court and any later proceedings were hence null and void. Clark v Crosswhite, 28 Mo.App. 34; Duncan v. Cook, 49 Mo. 116; Judson v. Walker, 155 Mo. 179; Robinson v. Hood, 67 Mo. 660; Spence v. Railroad, 111 Mo. 561; State ex rel. v. Stead, 143 Mo. 252; Ormiston v. Trude, 77 Mo.App. 310. If the infant respondent was not properly brought into court, then all proceedings are void, no power existed in the court to appoint a guardian, or guardian ad litem, and his acts, if so appointed, would be void; the court would have no jurisdiction of either the parties or the subject-matter, and the action should be dismissed at any stage. Higgins v. Railroad, 36 Mo. 418; Spence v. Railroad, 111 Mo. 555; Hutson v. Sickman, 125 Mo. 165; secs. 3480, 3487, 3495, R. S. 1899; Garrison v. Lyle, 38 Mo.App. 558; Repenstran v. Ins. Co., 51 Mo. 481. (2) Only the probate court of the county where the minor resides has jurisdiction to appoint a legal guardian of the person, or curator of the estate. Const., art. 6, sec. 34; sec. 3480, R. S. 1899; Lacy v. Williams, 27 Mo. 280; Marnhute v. Golthiens, 70 Mo. 280; Johnson v. Beasley, 65 Mo. 255; Cox v. Boyle, 152 Mo. 583; sec. 3496, R. S. 1899; Duncan v. Crook, 49 Mo. 116. (3) A minor having a legally appointed, qualified and acting curator of his estate cannot sue by next friend or guardian ad litem. Robinson v. Hood, 67 Mo. 661; Colvin v. Hauenstein, 110 Mo. 575; Larned v. Renshaw, 37 Mo. 458; Clark v. Crosswhite, 28 Mo.App. 38. It is the duty of the curator to represent his ward in all legal proceedings, to prosecute and defend for him without being especially appointed guardian ad litem, unless in a peculiar statutory proceeding a different requirement is made. Johnson v. Walker, 155 Mo. 179; Brandon v. Carter, 119 Mo. 572; Railroad v. Carter, 85 Mo. 448. It is claimed this is an action in partition. The curators of the estate of minors or persons of unsound mind are authorized, on behalf of their respective wards, to do and perform any matters and things respecting the division of any lands. Sec. 4380, R. S. 1899; Colvin v. Hauenstein, 110 Mo. 575; Larned v. Renshaw, 37 Mo. 458; Railroad v. Carter, 85 Mo. 448; Duncan v. Crook, 49 Mo. 116. Under the practice act, secs. 3467 and 3480, guardians or next friends may be appointed for infants, but these sections do not apply when there is an existing guardian already appointed. Clark v. Crosswhite, 28 Mo.App. 34; Garrison v. Lyle, 38 Mo.App. 558; DeJarnet v. Harper, 45 Mo.App. 415. But a next friend or guardian ad litem could not prosecute a partition suit; only a regular curator, duly appointed and qualified, could bring such an action for the minor. Colvin v. Hauenstein, 110 Mo. 575; Thornton v. Thornton, 27 Mo. 302; Payne v. Maser, 114 Mo. 630; Shaw v. Gregorie, 41 Mo. 407; Hise v. Thompson, 18 Mo. 461; Campbell v. Cass Co., 84 Mo. 866; Railroad v. Carter, 85 Mo. 448; Mitchel v. Jones, 50 Mo. 438; Chrisman v. Divinia, 141 Mo. 122; Higgins v. Railroad, 36 Mo. 418; Spillane v. Railroad, 111 Mo. 555; Rhodes v. McNully, 52 Mo.App. 303. Sections 4381 and 4382 of partition as to appointing guardians only apply when there is no regular acting guardian or curator. Mitchel v. Jones, 50 Mo. 438; Chrisman v. Divinia, 141 Mo. 132; State ex rel. v. Stead, 143 Mo. 248. A minor cannot appear by attorney, but must appear by guardian. Brandon v. Carter, 119 Mo. 572; Robinson v. Hood, 67 Mo. 660; Thornton v. Thornton, 27 Mo. 302; sec. 3498, R. S. 1899; Sherwood v. Neal, 41 Mo.App. 416; Ormison v. Trumbo, 77 Mo. 310. (4) The petition avers that Mills is appointed under authority of section 4382, Revised Statutes 1899. This assumes that the action was one of partition when filed in Scotland county; and has been properly removed to Schuyler county. That the lands were on September 1, 1902, as between the minor and appellant, as his curator, an estate of which partition could be had between them in this action. 1. It is an action of a minor by an assumed guardian of his person, suing a legally appointed, qualified and acting curator of his estate, over property interest of the ward. 2. A guardian appointed by the circuit court of a county in which the minor did not reside (and in which his property is not located). 3. It is an action in the first instance for money, a debt, to have the $ 1000 and the $ 400 and the $ 1275 to be adjudged a debt of appellant to the respondent; and in the second place to have that debt made a charge, or lien, upon land, the title to which is in the appellant; and in the third place to have that land partitioned between appellant and respondent. It is averred that appellant "wrongfully, and without the knowledge or assent of his wife, took her said separate money and invested same in said real estate. That defendant also took $ 1400 of plaintiff's money, so then in defendant's hands, and invested same in said lands." Then in fact, and in law, if these allegations are true, which respondent cannot deny, neither the minor nor his mother bought any land, but appellant incurred a debt, as implied by law, to them, for the money. 4. Respondent as plaintiff and as heir of his mother must do one or the other of two things, viz: Accept the purchase of the land, as consummated by the joint deed, or else repudiate it, in toto, and proceed for the money. State ex rel. v. Titman, 134 Mo. 163; Green v. Tilman, 124 Mo. 372; State ex rel. v. Stead, 143 Mo. 248.

Higbee & Mills and Smoot, Boyd & Smoot for respondent.

The judgment having been affirmed on appeal, no writ of error can be sued out, and the writ of error so issued should be quashed. Harbridge v. Clay, 87 Mo.App. 326; Brownnell v. Phillips, 79 Mo.App. 116; Schnaider v. Levvie, 41 Mo.App. 584. If a party could both have an appeal and writ of error, it might put the court in an inconsistent position. There could be a judgment of affirmance, as in this cause, on appeal, and a judgment of reversal on the writ of error sued out. Hence, defendant in error contends that the judgment having been affirmed on appeal as to the matters involved in said appeal is res adjudicata and cannot be again reviewed. Plaintiff in error having the right to appeal from the interlocutory judgment as provided by section 808, Revised Statutes 1899, the judgment of affirmance bars second appeal or writ of error. Haven v. Railroad, 155 Mo. 228; Graney v. Railroad, 157 Mo. 678; Richardson v. Agr. & Mec. Assn., 156 Mo. 413.

OPINION

LAMM, J.

This case is twin to that between the same parties, just disposed of. [Padgett v. Smith, 205 Mo. 122, 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 fifteenth 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 tenth 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 eighteen sub-heads, 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 proceedings 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 non-joinder 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...