Reineman v. Larkin

• Decision Date: 01 July 1909
• Parties: REINEMAN et al. v. LARKIN et al.
• Court: Missouri Supreme Court

121 S.W. 307

222 Mo. 156

REINEMAN et al. v. LARKIN et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. APPEAL AND ERROR (§ 334) — DEATH OF PARTY PENDING APPEAL — NECESSITY OF REVIVAL.

On the death of one of a number of appellants, a cause may proceed on appeal without a revival.

2. APPEAL AND ERROR (§ 73) — DECISIONS REVIEWABLE — INTERLOCUTORY JUDGMENT FOR DOWER.

Under Rev. St. 1899, § 806 (Ann. St. 1906, p. 769), authorizing any party to a suit aggrieved by any judgment in any civil case, from which an appeal is not prohibited by the Constitution, to appeal from any order granting a new trial, or in arrest of judgment, or in refusing to revoke, modify, or change an interlocutory order appointing a receiver, or dissolving an injunction, or any interlocutory judgment in actions of partition which determines the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause, an appeal does not lie from an interlocutory judgment decreeing dower.

3. EXCEPTIONS, BILL OF (§ 24) — NUMBER OF BILLS.

Rev. St. 1899, § 728 (Ann. St. 1906, p. 720), provides that exceptions to the opinion of the court in any civil suit may be filed at the time or during the term of the court at which they are taken, or within such time thereafter as the court may by order allow, or within the time the parties to the suit or their attorneys may thereafter agree upon, and that all exceptions taken during the trial of a cause before the same jury shall be embraced in the same bill of exceptions. Held, that an appeal from a final judgment in an action for dower does not bring up the evidence at the trial at a former term resulting in an interlocutory judgment and the exceptions saved to the admission of such evidence, unless both such evidence and exceptions were transferred by timely term bill of exceptions.

4. DOWER (§ 109) — ACTIONS — JUDGMENT.

Under Rev. St. 1899, § 2963 (Ann. St. 1906, p. 1706), providing that, when any report assigning dower shall be approved, the court shall award a writ of possession according to the report of commissioners, the writ should issue only for the part of the land set off as dower by the report, and it is error to award a writ for the whole tract.

5. DOWER (§ 109) — ACTION — EXECUTION.

Under Rev. St. 1899, § 2977 (Ann. St. 1906, p. 1710), providing that, in all cases of judgments for damages in proceedings to have dower set aside, "execution thereof shall be awarded only against the estate in which dower shall have been assigned," personal judgment in dower proceedings for damages and execution awarded against defendants personally are erroneous.

6. APPEAL AND ERROR (§ 1075) — HARMLESS ERROR — JUDGMENT — WAIVER OF DEFECT.

An error, in proceedings to set aside dower, in failing to direct a special judgment and award execution responsive thereto, is not reversible error, where the error is waived by counsel for defendants.

7. INFANTS (§ 81) — ACTIONS — APPOINTMENT OF GUARDIAN AD LITEM — ACCEPTANCE.

Under Rev. St. 1899, §§ 558-560 (Ann. St. 1906, pp. 589, 590), providing that a suit against an infant shall not be prosecuted beyond the service of process until a guardian be appointed, and that such appointment shall be made on the request of the infant defendant, or of a relative or friend of an infant, and on the written consent of any competent person as a guardian, which consent shall be filed with the clerk before answer by such infant shall be filed, and that if the infant neglect, for one day after the first day of the term at which he is bound to appear, to procure the appointment of a guardian, the court shall appoint some competent person to serve, in the defense of such suit, a suit against an infant cannot proceed without the appointment of an adult person of mature judgment to defend his rights, which appointment must be made at the very beginning of the proceeding after service of process and before answer, and the person appointed must be notified of his appointment and accept in writing, and waiver of the acceptance of "Hon. W. S. Anthony," appointed guardian ad litem, is not shown by the subsequent filing of an answer by "Smith & Anthony," a firm of attorneys who had appeared in the case before the appointment of the guardian, and whose answer, filed subsequently, was for all the defendants.

8. EVIDENCE (§§ 5, 9-11) — JUDICIAL NOTICE — HISTORICAL, GEOGRAPHICAL, AND SCIENTIFIC FACTS.

Courts take judicial notice of facts of current history and of geographical and scientific facts and those commonly known by all mankind.

9. INFANTS (§ 112) — ACTIONS — JUDGMENT — COLLATERAL ATTACK.

A judgment against an infant, being voidable only, and not void, is not subject to collateral attack.

10. JUDGMENT (§ 518) — COLLATERAL ATTACK — NATURE OF PROCEEDINGS.

An appeal from a judgment is not a collateral attack upon it, but is in the nature of a direct attack.

11. APPEAL AND ERROR (§ 544) — RECORD — BILL OF EXCEPTIONS — DECISION NOT OTHERWISE REVIEWABLE.

In an appeal from a judgment against an infant, the failure to secure the written acceptance of the person appointed as guardian ad litem is an error manifest on the face of the record and does not depend on the bill of exceptions.

Appeal from Circuit Court, St. Francois County; Robert A. Anthony, Judge.

Action by Etta M. Reineman and another against Mamie Larkin and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

W. H. Clopton and W. S. Anthony, for appellants. D. L. Rivers, for appellees.

LAMM, P. J.

The plaintiff Etta, whose name appears as Etta Larkin Renneman and as Etta Reineman (and in several other forms) in this record, is the wife of Isaac Renneman, or Reineman, and, claiming to be the widow of Andrew Larkin, sues for dower in certain real estate in St. Francois county of which Andrew died seised of an estate of inheritance — lot 1, N. W. ¼, section 6, township 35, range 4, being the locus in quo. At a certain term of the St. Francois circuit court she was adjudged such dowress and entitled to have assessment of damages, and commissioners were appointed to admeasure dower. At the next term the commissioners reported setting off to her 5 8/10 acres as dower land; said parcel being described by metes and bounds and as part of lot 1 of the N. W. ¼ of section 6, aforesaid. Said report was approved at the next term, and thereupon evidence was heard on the question of damages and the issues found for plaintiff, assessing her damages at $100. The concluding part of the final judgment reads: "It is therefore adjudged by the court that the plaintiff have and recover of and from the said defendants the said sum of one hundred dollars, her damages so assessed, and that she have execution therefor; and it is further ordered and adjudged that the plaintiff be and she is hereby awarded writ of possession according to the report of the commissioners, and that is to say that she is put in possession of the following part of said lands assigned by said commissioners as her dower, to wit: Lot one of the northwest quarter of section six (6) township 35, range 4 east." There was a sharp issue as to whether plaintiff was entitled to dower, and proof was put in pro and con. Defendants filed no motion to arrest the judgment rendered on that issue, and no motion for a new trial, nor did they preserve (in a bill of exceptions filed during the term, or afterwards by leave then granted) the evidence introduced on the issue of dower or no dower, or the exceptions saved at that trial. At a subsequent term, when judgment was rendered for the damages, and execution was ordered for them, and a writ of possession was awarded, defendants did file unsuccessful motions for a new trial and in arrest, took due leave to file a bill of exceptions, and in due time filed one. In that bill of exceptions they undertook to preserve the evidence introduced and the exceptions saved at the first trial at a former term.

Defendant Mamie is a minor and only child of Andrew Larkin, deceased. Defendant Moran seems to be in possession of the locus in quo; but how he holds — whether as tenant, purchaser, or under some other claim of right — does not clearly appear in the pleadings or in the proof. While the pleadings are silent on the point, we gather from the testimony that defendant J. S. Larkin was a brother of Andrew. There is some faint evidence that he acted somewhat in loco parentis in and about taking charge of and renting the real estate for and on behalf of his niece; but in what legal capacity, if any, is dark. At a certain time after the cause was appealed here, the death of J. S. Larkin was suggested. Thereat scire facias issued to one McLaran, administrator of his estate, for the purpose of revivor. The matter was not pursued, no order of revivor was made, and the case was argued and submitted with the record in that condition.

Going back to the early stages of the case below, it appears that on a certain day plaintiff, by motion filed, suggested that Mamie was an infant served with process, that she had neglected to procure the appointment of a guardian to defend the suit, and prayed the court to appoint some competent person as guardian for her, as by statute provided. On that same day an order was entered, viz.: "That Hon. W. S. Anthony be and is hereby appointed guardian ad litem for the minor defendants herein." No notice to such appointee is shown, nor was his written consent filed, and no separate answer was filed on behalf of the minor. Neither did the guardian ad litem at any time or stage appear in person or by counsel and take any step in the case, so far as disclosed by the record. On that same day a general answer was filed for all the defendants, not naming them severally, but using a plural form. After a denial of each and every allegation, the answer concludes as follows: "Further answering, defendants say that plaintiff was never...