Smith v. Davis

• Decision Date: 31 October 1858
• Citation: 27 Mo. 298
• Parties: SMITH, Respondent, v. DAVIS, Appellant.
• Court: Missouri Supreme Court

27 Mo. 298

SMITH, Respondent,

v.DAVIS, Appellant.

Supreme Court of Missouri.

October Term, 1858.

1. In a suit for partition commenced by suing out a writ of summons against the defendants upon a petition filed in the proper clerk's office, the writ of summons should be served upon the minor defendants; it is not necessary in such cases to serve such writ upon the guardian of such minor defendants.

2. A suit for partition is not triable, except by consent of parties, at the term at which the defendant is first bound to appear.

Appeal from Ralls Circuit Court.

Dryden and Allen, for appellant.

I. The judgment of the Circuit Court was final and absolute, unless reversed on appeal or writ of error. (6 Peters, 729; 1 Peters, 340; 2 Peters, 169; 11 Mass. 226.) The parties to the partition cannot have the judgment set aside on this motion. The judgment was rendered at the instance of the plaintiff. The defendants were duly and properly represented by their guardian. (18 Mo. 461; 8 Mo. 257.) The judgment or order of sale and sale itself were all duly and properly made. The court had full power to appoint a guardian ad litem, although the defendants had a general guardian. The act of the guardian bound them. (18 Mo. 461; R. C. 1855, p. 1279; 11 Mo. 243.)

Carr, for respondent.

I. The order of sale was irregularly made at the return term. (Doan v. Holly, 26 Mo. 186; 10 Mo. 454; 6 Mo. 388; 20 Mo. 432; 26 Mo. 505; 3 Black. Comm. 404.) There being an irregularity, the court was authorized to set aside the sale. (3 Wend. 478; 4 Wend. 217; 10 Wend. 568; 1 Wend. 71; 6 Wend. 526; 3 Duer, 652.) It was an irregularity not to make the general guardian and curator of the minors a party to the suit.

RICHARDSON, Judge, delivered the opinion of the court.

On the 6th of November, 1855, Sarah A. Smith commenced a suit for the partition of a quarter section of land against John W. and Enoch A. Smith, both of whom were minors. The summons was returnable to the following March term of the court, and was personally served on the defendants in January. At the return term, in March, 1856, a guardian ad litem was appointed for the infant defendants, who was duly qualified, and filed an answer putting in issue the allegations of the petition; and, the cause being submitted to the court upon the petition, answer and proofs, it was found by the court that the plaintiff and defendants owned the land as tenants in common, in equal parts, and, it appearing that the land could not be divided without great prejudice to the owners, a final judgment was rendered, which directed that the premises should be sold by the sheriff. At the next term, in August, the land was sold by the sheriff in the manner and on the terms directed by the judgment, and was purchased by the defendant. One year after the sale, the plaintiff and the said infants, by their guardian and curator, united in a motion against the purchaser, asking to have the sale set aside, and, the motion coming on to be heard, was sustained. It was admitted that the minors had a regular guardian and curator at the time of the commencement of the suit. The order of the Circuit Court setting aside the sale is defended on the ground that the judgment is irregular for two reasons: first, because the guardian of the infants was not made a party to the suit, nor served with notice; and, next, because final judgment was rendered at the return term of the summons.

This suit was begun before the Revised Statutes of 1855 took effect, but, as all the provisions of the partition acts of 1845, and the amendment thereto of 1847, that affect this case, are substantially incorporated into the present law, the plaintiff's objections will be considered in reference to the provisions of the existing statutes. Suits for partition may be commenced either by serving a notice with a copy of the petition as prescribed by the sixth section of the partition law, or by filing the petition in the office of the clerk of the proper county, and suing out thereon a writ of summons against the defendants as directed by the eighth section. If the first mode is adopted, a copy of the petition, “with notice that the same will be presented to the court on some certain day in the term, or as soon thereafter as a hearing can be had, shall be served at least twenty days previous to such term on all parties interested in the lands or tenements, who shall not have joined in the petition, and on the guardians of such as are minors, or of unsound mind.” (Sec. 6.) But if the other mode is adopted, the writ of summons only goes against the defendants, “which shall be in manner and form, and be served and returned in like time and manner, as writs in ordinary civil actions.” (Sec. 8.) Turning to the third article of practice in civil cases (p. 1219), which regulates proceedings by and...