Ragan v. Looney, 49877

• Decision Date: 13 April 1964
• Docket Number: No. 2,No. 49877,49877,2
• Citation: Ragan v. Looney, 377 S.W.2d 273 (Mo. 1964)
• Parties: Perry C. RAGAN and Mary Ola Ragan, Plaintiffs-Appellants, v. Benjamin LOONEY et al., Defendants-Respondents
• Court: Missouri Supreme Court

Page 273

377 S.W.2d 273

Perry C. RAGAN and Mary Ola Ragan, Plaintiffs-Appellants, v. Benjamin LOONEY et al., Defendants-Respondents.

No. 49877.

Supreme Court of Missouri, Division No. 2.

April 13, 1964.

Meredith B. Turner, Stewart, Reid & Turner, Springfield, for appellants.

Elvin S. Douglas, Douglas & Douglas, Bolivar, for respondents.

BARRETT, Commissioner.

This controversy between three sets of cousins, in essence an action to quiet and determine title to 200 acres of land in Polk County, arises out of 'a flaw in the title' created when their grandfather in 1875 devised the land to his wife until death or remarriage then to three of his sons, the fathers of the present parties, and 'the heirs of their bodies.' Insofar as material here the 1875 devise was 'and in the event of the death or marriage of my said wife, then and in that event, all of said * * * real estate shall descend and absolutely belong to my said sons, Benjamin Leonidas Looney, Jesse Edward Looney and William Stanford Looney, and the heirs of their bodies.'

In response to an action by one of the cousins, Ola Looney Ragan (an only survivor of one of the three sons), to quiet the title in her, the other thirteen cousins and one child of a deceased cousin filed an answer in which each claimed an undivided one-sixteenth interest. In addition they filed a cross bill in which they have attacked certain subsequently described proceedings and actions, and in a second count asked for partition of the land. The court found all issues against the plaintiff and her husband and instead of quieting the title in the plaintiffs has found that the plaintiffs and the defendants are tenants in common 'in equal shares of an undivided one-sixteenth interest each' and accordingly has decreed partition, and the plaintiffs have appealed.

Jesse Edward Looney, mentioned in the will, was the father of the appellant-plaintiff, Mary Ola Ragan, and Benjamin L. and William S., with the exception of a child of a deceased grandchild, were the fathers of the respondent-defendants. In 1895 two of the sons conveyed their interests to the third brother, William S., and from his grantees, through deeds and mortgages the Hellman Commercial Trust and Savings Bank of Los Angeles, California, in 1913, came into whatever title the three sons may have had. In any event in 1913 the Hellman bank or its predecessor instituted an action in the Circuit Court of Polk County against the testator's nineteen grandchildren, the children of the three sons (who were all alive and either in person or by publication were served with process), to quiet the title to their 200 acre tract of land. The gist of Hellman's claim was that the grandfather's will had not been recorded, hence from an examination of an abstract of title it had no notice of the will and the interests of the testator's grandchildren, the present parties plaintiff and defendant. It was held in that suit that the 1875 will had been admitted to probate, that the fact appeared in the bank's abstract of title and therefore it was not an innocent purchaser entitled to cut off the testator's grandchildren as 'heirs of the body' of the three sons. The consequence was that the bank had an estate for life, measured by the lives of the three sons, and the nineteen grandchildren-cousins owned the remainder. Hellman Commercial Trust & Savings Bank v. Looney, 271 Mo. 545, 197 S.W. 144.

And now to the circumstances involved in that suit giving rise to this action. The nineteen cousins, all defendants in the Hellman case, were minors and Mr. Herman Pufahl was appointed their guardian ad litem. Since Mr. Pufahl was a lawyer he also acted as counsel for the minors throughout the Hellman litigation and as indicated by the result successfully defended their rights and interests. Mr. Pufahl was appointed guardian ad litem for these minor children even though their fathers were then alive and aged, Benjamin L., 52, Jesse E., 50 and William S., 48, (William S. was said to have abandoned his children by 1913). The three sons died in 1947, 1958 and 1944, Jesse E., the father of the plaintiff Ola being the last to die in 1958 and after which event this litigation was commenced. In any event, after the filing of the mandate and opinion in the Hellman case Mr. Pufahl filed a motion in which he set forth the fact of his appointment and defense of the suit, including the fact that he had briefed and argued the case in this court, and therefore asked the court 'to make him an allowance to pay' for his services to the minor defendants. Upon this motion the court entered an 'interlocutory judgment' allowing Mr. Pufahl a fee of $500 but ordering personal notice to resident minors and notice by publication to nonresident minors. Thereafter, one of the minor defendants in that suit, Ola Looney, then married to Perry C. Ragan, appeared by counsel and filed a motion to set aside the interlocutory decree on the ground that 'this court is without jurisdiction over said minors for the purpose of rendering said judgment.' The court sustained that motion and thereby, of course, set aside the $500 allowance to Mr. Pufahl.

At the following term of court Mr. Pufahl instituted 'an action for services rendered' against all the minor defendants. In the petition he set forth the fact of the Hellman bank suit, the fact of his appointment as guardian ad litem of the nineteen minors who were in fact the only defendants, and the fact of his rendition of services as their counsel and asked for a fee of $500. After service of process Mr. O. P. Hollingsworth, a lawyer, was appointed guardian ad litem of 'all of the minor defendants' in Mr. Pufahl's suit. Subsequently, according to the court's records, Mr. Hollingsworth filed an answer for the minor defendants. It may be interpolated here that except for three cousins (one of whom was Ola's brother) who died without issue and with the noted exception of one great-granddaughter who is a respondent, all of these cousins, grandehildren of the 1875 testator Benjamin Looney, were alive and were parties defendant to the 1913 and 1917 suits and are now parties to the immediate suit instituted in 1960. Thereafter the record recites, 'Trial by court. Judgt. for Plf. (Mr. Pufahl) for $500.' To satisfy Mr. Pufahl's judgment the land was levied upon and on November 15, 1918, sold by the sheriff of Polk County for the sum of $440 to W. H. McGuire (Ola Ragan's great-uncle) who on March 22, 1919, for the recited consideration of one dollar, conveyed the land by quitclaim deed to Ola Ragan and her brother W. S. Looney. This latter deed was recorded on May 26, 1923 and together with other deeds was found in the lock box of Jesse E. Looney, Ola's father, on his death in 1958. In July 1930 Ola and her husband, Perry, succeeded by purchase, $1500, to the life estate of the Hellman bank (then in liquidation) and in 1942 by deed to her brother's interest and thus subject to the claim of the respondents has become the fee owners of the land. But the problem involved upon this appeal is the validity of the Pufahl judgment and the execution sale by the sheriff.

Specifically the respondents claim that the petition in the Pufahl suit failed to state a cause of action and that therefore the court had no jurisdiction of that action. The basis of the claim is that in the Hellman litigation 'the defendants (the 19 minors) were the prevailing parties' and since the action was at law they as minor defendants were not chargeable with the fee which, they now assert, should have been taxed as costs against the plaintiff bank, the losing party. In the first place, this contention overlooks the dual capacity in which Mr. Pufahl acted. It was the duty of the court, after commencement of the suit and service of process, to appoint a guardian ad litem for the minor defendants (V.A.M.S. Sec. 507.190) and that, admittedly, the court did. And it may be, as a general rule, as the respondents now contend, that a guardian ad litem is entitled to no other fee than 'that which is taxed as part of the costs in the proceeding.' 27 Am.Jur., (Infants) Sec. 126, p. 846. But fees or costs chargeable as 'remuneration eo nomine' are those allowed strictly for services in his capacity as guardian. Annotation 9 A.L.R. 1537. A court appointed guardian ad litem may of course employ counsel (Nagel v. Schilling, 14 Mo.App. 576) but if the guardian is also a lawyer he may also act as counsel for his wards and if he does and the services were necessary he is entitled to a reasonable fee for his services in that capacity or for his combined services. 27 Am.Jur. Sec. 128, p. 846; Annotation 9 A.L.R. l. c. 1543.

Costs are statutory allowances to a party to an action for his expenses and there is no statute, except in partition, authorizing the allowances to a guardian ad litem as costs. Nevertheless, in particular actions such allowances, even in the absence of express statute, have been assessed as costs. Annotation 'Allowance of fees for guardian ad litem appointed for infant defendant, as costs' 30 A.L.R.2d 1148. While there is no general statutory authority for fees to guardians ad litem, the duty of the court to appoint necessarily implies the obligation to pay and the power of the court to fix reasonable compensation. Jones v Yore, 142 Mo. 38, 43 S.W. 384; Jones v. Yore, 158 Mo. 83, 57 S.W. 1134. And if there is property or a fund in court for disbursement 'there would seem to be no tangible reason why the court should not order such allowance to be paid out of the infant's interest in court.' Walton v. Yore, 58 Mo.App. 562, 565; Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321. There was no fund in this case and while the subject matter of the Hellman litigation was the land it is not claimed that it was so in the hands of the court that it could by the court's mere decree be subjected to the payment of Mr. Pufahl's fee.

There is another factor to this phase of the appeal, Ola...