Rush v. Rush

• Decision Date: 31 March 1854
• Citation: Rush v. Rush, 19 Mo. 441 (Mo. 1854)
• Parties: RUSH et al., Respondents, v. RUSH et al., Appellants.
• Court: Missouri Supreme Court

19 Mo. 441

RUSH et al., Respondents,

v.RUSH et al., Appellants.

Supreme Court of Missouri.

March Term, 1854.

1. In a proceeding to set aside a will, it is erroneous to arrest a judgment as to some of the defendants, and enter a final judgment against the others.

2. Where an infant, who is joined with other defendants, appears by an attorney, a judgment against all the defendants will be reversed as to all.

Appeal from Perry Circuit Court.

J. W. Noell, for appellant.

M. Frissell, for respondent.

SCOTT, Judge, delivered the opinion of the court.

This was a proceeding by the respondents to set aside the will of their ancestor. Wm. Rush, on the ground of insanity. On a trial there was a verdict for the respondents. It appears on the face of the proceedings, that two of the defendants were minors and appeared by attorney. For this cause, on motion, the court arrested the judgment as to the infants, and entered a final judgment against the adult defendants. From this judgment they appealed.

This cause does not raise the question, whether any other party than the infant himself can take advantage of his infancy. The judgment was properly arrested as to the infants, and the only inquiry is, whether it should not have been arrested as to all of the defendants.

1. This was a proceeding to set aside a will. The will was set aside as againt some of the defendants, and a final judgment rendered against them. Now if, between the parties as to whom the judgment has been arrested, there should, on another trial, be a verdict in favor of the will, n what condition will the court be? Will it certify down to the county court that the will is established and that it is not established? There can be but one final judgment in a cause. Even if the court was right as o the law, when the judgment was arrested, as to some of the defendants, a final judgment as to the others should have been suspended, until there was a verdict between...