Sharkey v. Kiernan

• Decision Date: 18 February 1889
• Citation: 97 Mo. 102,10 S.W. 886
• Parties: SHARKEY v. KIERNAN et al.
• Court: Missouri Supreme Court

10 S.W. 886

97 Mo. 102

SHARKEY v. KIERNAN et al.

Supreme Court of Missouri.

February 18, 1889.

APPEAL — REVIEW — OTHER SUIT PENDING.

When it appears on the trial of a partition suit that there is a former suit pending on appeal in the supreme court, between the same parties, involving the same land, and adverse claims thereto, the trial court should suspend proceedings until the determination of the controversy in the former suit; and if it proceeds to judgment, and there is an appeal to the supreme court, the latter court will reverse and remand the cause, with directions to await the determination in the former suit.

Appeal from St. Louis circuit court; WILLIAM H. HORNER, Judge.

Suit for partition by Thomas W. Sharkey against Mary Kiernan, Margaret Milham and her husband, Charles Milham, Mary Ellen Hansen and her husband, Charles Hansen, John Sharkey, Annie McDermot and her husband, Thomas McDermot, and Julia Sharkey. Decree for plaintiff. Defendant Julia Sharkey appeals. For opinion on former appeal, see 4 S. W. Rep. 107.

M. F. Taylor and F. M. Estes, for appellant. Frank K. Ryan, for respondent.

RAY, C. J.

This is a suit in partition by plaintiff against defendants, brought to the December term, 1884, of the circuit court of the city of St. Louis, Mo. The petition alleges that plaintiff and defendants are tenants in common of the described real estate as heirs at law of Catherine McLaughlin, who owned the same in fee-simple, and died intestate. On the part of plaintiff testimony was offered tending to sustain the allegation of the petition, and to authorize the decree, from which only one of the defendants, to-wit, said Julia Sharkey, has appealed.

At the trial said Julia Sharkey, in her own behalf, offered in evidence, without objection, the judgment and proceedings had in a certain other cause instituted by her as plaintiff in June, 1883, in the said circuit court of St. Louis, against this plaintiff and her co-defendants in this suit; the object of which was to vest in her the title to the whole property involved in this partition suit, under a parol agreement alleged to have been made by one James McLaughlin and his wife, Catherine McLaughlin, in the life-time of the husband, and by said Catherine after the death of the said husband, the purport of which was, in brief, to adopt the said Julia Sharkey as their child, and to leave her their said property at their death. To the petition of said Julia Sharkey in said former suit the present plaintiff, Thomas Sharkey, and said Annie McDermot, although personally served, made no appearance, and judgment was taken by default against them. Other defendants in the former suit, being also co-defendants with said Julia Sharkey in the present suit in partition, did appear in said former suit in equity, and filed a demurrer to the...