State v. Rose

• Citation: 189 S.W.2d 425
• Decision Date: 11 June 1945
• Docket Number: No. 20582.,20582.
• Parties: STATE OF MISSOURI EX REL. AMANDA FECHTLING v. HONORABLE V.C. ROSE, AS JUDGE OF THE CIRCUIT COURT OF PUTNAM COUNTY, MISSOURI.
• Court: Court of Appeal of Missouri (US)

189 S.W.2d 425

STATE OF MISSOURI EX REL. AMANDA FECHTLING v. HONORABLE V.C. ROSE, AS JUDGE OF THE CIRCUIT COURT OF PUTNAM COUNTY, MISSOURI.

No. 20582.

Kansas City Court of Appeals. Missouri.

June 11, 1945.

Original Proceeding in Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

M.D. Campbell and Philip J. Fowler for relatrix.

(1) In considering the motion for judgment on the pleading the facts well pleaded in the return, together with undenied allegations of the petition, will be taken as true. State ex rel. v. Duncan, 68 S.W. (2d) 679. But such motion does not admit the truth of the conclusion stated in the return. Baker v. Lamar, 140 S.W. (2d) 31. (2) The quoted allegations of the return are mere conclusions not the statements of issuable facts. James v. Bailey Reynolds Chandelier Co., 30 S.W. (2d) 118, 125; Piggott v. Denton, 46 S.W. (2d) 618, 620; Iven v. Winston Bros. Co., 48 S.W. (2d) 125, 126, 127. (3) It is settled law that the averment of a legal conclusion is not the statement of an issuable fact. State ex rel. v. Sevier et al., 92 S.W. (2d) 102; Miller v. Bennett et al., 172 S.W. (2d) 960, 964. (4) The Circuit Court of Putnam County lacked jurisdiction to assign dower to plaintiff in the lands located in Adair County, the homestead of relatrix being in said Adair County. State v. Cooper, 246 S.W. 892; Sec. 342 R.S. 1939. The dwelling house of relatrix and her husband was in Adair County and any judgment rendered by the circuit court of Putnam County, setting off dower and homestead, would be contrary to an express statute (Sec. 342) and void. State ex rel. v. Riley, 118 S.W. 647, 654; Powell v. Dalton, 12 S.W. (2d) 453, 458; Northstine v. Feldmann, 298 Mo. 365. (5) The Putnam County Circuit Court lacks jurisdiction to assign dower and homestead to plaintiff-relatrix. Sec. 342, R.S. Mo. 1939; Brown v. Woody, 64 Mo. 547, 551. (6) Jurisdiction rests on three essentials, one of which is, to render a particular judgment in a particular case. State ex rel. v. Flynn, 154 S.W. (2d) 52, 57. (7) As the relatrix has dower in land in more than one County, suit to recover the same must be brought in the County "in which the principal messuage (homestead) of the deceased is situated." The proceedings to set out homestead and dower is but one cause of action. Bryon v. Rhoades, 96 Mo. 485, 10 S.W. 53. (8) As respondent was proceeding to final judgment something remained to be done and prohibition was the proper remedy. State ex rel. v. Elkin, 130 Mo. 90, 30 S.W. 333; State ex rel. v. Duncan, 193 S.W. 950. (9) The allegations of the petition in this court will be treated as true. Boehme v. Roth, 280 S.W. 730. (10) When the amended petition was filed the former petition passed out of the case and can not be considered for any purpose, because the original petition was abandoned. State ex rel. v. Hiller, 295 S.W. 132.

Edward M. Jayne for respondent.

(1) The Circuit Court of Putnam County is a court of general jurisdiction and every presumption will be indulged in favor of its jurisdiction and the regularity of its proceedings; and, in the absence of a positive showing to the contrary, it will be presumed that it had properly acquired jurisdiction to make any and every order and judgment that it made. Harbstreet v. Shipman, 122 S.W. (2d) 395; Hall v. Thurman, 86 S.W. (2d) 1069; Ross v. Pitcarn, 179 S.W. (2d) 35. (2) (a) Partition between life tenants, by the curtesy or otherwise, and remaindermen may be granted, if all the parties consent. Carson et al. v. Hecke et al., 222 S.W. 850. (b) The petition was sufficient as against a demurrer. Bragg v. Ross, 139 S.W. (2d) 491. (3) (a) The statute contemplates: "... asking for the admeasurement and setting off of any dower interest therein, if any ..." Sec. 1709, R.S. 1939; Weatherford v. King, 119 Mo. 51; Secs. 1728, 1745, 1750, 1754, R.S. 1939. (b) A partition suit is a proper proceeding in which to have assigned homestead and dower. Colvin v. Havenstein, 110 Mo. 579; Weatherford v. King, 119 Mo. 51. (4) There is special statutory authority for the appointment of commissioners to set out homestead either at law or in equity the same becomes necessary and "... the court in which such proceeding shall be pending ..." is authorized to do this and there is no statutory requirement that it be a court of the same county. Sec. 617, R.S. Mo. 1939; Growney v. O'Donnell, 198 S.W. 863. (a) It has even been held that it is error for the court to fail to set off a homestead in a partition suit. Martin v. Martin, 285 S.W. 92.

SPERRY, C.

This is an original proceeding in prohibition in which relatrix, Amanda Fechtling, seeks this court's writ prohibiting respondent, judge of the Circuit Court of Putnam County from proceeding further in a certain cause pending in said Circuit Court in which she is plaintiff and Ardie Fechtling, Pearl Fechtling, Bernie Fechtling and Carrie M. Sanders are defendants.

The petition for the writ charged that relatrix and F.S. Fechtling were married on September 24, 1941, and continued to live together as husband and wife until his death on October 23, 1942; that said Fechtling died intestate and was survived by plaintiff, his widow, and his four children of a former marriage who are the defendants in the above mentioned suit; that at the time of his death said Fechtling was the owner and in possession of 2200 acres of land in Putnam County, and the owner and in possession of approximately 30 acres of land in Adair County, all of which land being specifically described in the petition; that all of said land was conveyed to Fechtling by instruments of conveyance prior to the aforesaid marriage; that said instruments were recorded in the office of the recorder of deeds for the respective counties prior to said marriage; that at all times mentioned in said petition there was a dwelling house, barn and other buildings used in connection therewith on the lands in Adair County; that relatrix and her husband had their home and residence in the said dwelling house during their entire married life; that in May, 1943, relatrix brought a suit in the Circuit Court of Putnam County by the filing of her petition in the office of the circuit clerk of said county in which petition it was alleged that she and the said Fechtling were married as aforesaid; that he died at the time aforesaid; that he was survived by the four children who were made defendants in the said action as above alleged; that from the time of said marriage until his death she and the said husband lived together in a dwelling house situated upon the aforesaid land in Adair County, which lands had been conveyed to her said husband prior to their marriage; and that said conveyance had been recorded in the office of the recorder of deeds in Adair County prior to said marriage. She further alleges that thereafter she filed amended petition in said cause in which she alleged all the foregoing facts relating to the marriage and death of her husband, residence in said dwelling house situated upon said land in Adair County, the recording of the conveyance of said land to her husband, that her said husband was the owner of said lands, that she was entitled to have a homestead set off to her in said lands, that she was entitled to both dower and homestead in all of the lands described in her petition and prayed that her homestead be set off to her and her dower admeasured; that the defendants in the said action filed answer to said amended petition in which it was stated that relatrix owned homestead in said lands in Adair County, and dower in the other lands described in the petition; that thereupon, on September 4, 1943, said Circuit Court entered upon its record an order in which it was recited that it did appoint three commissioners to set off to relatrix dower and homestead in the aforesaid lands; that afterwards, on September 4, 1943, said commissioners filed with the clerk of said Circuit Court their report in writing in which it was stated that they set off to relatrix, as her homestead, one acre of the aforesaid lands in Adair County, on which was located the dwelling house occupied by her and her husband in his lifetime, specifically described said acre by metes and bounds, and did set off to plaintiff, as her dower, the remaining part of said lands in Adair County; that thereafter, on September 9, 1944, the said Circuit Court entered upon its record an order in which it was recited that the report of said commissioners was approved and said cause was set down for final hearing and judgment for October 30, 1944; that during the hearing of the report of said commissioners relatrix stated in open court that she dismissed her said action and thereupon the court entered upon its records an order in which it was recited that the court refused to permit her to dismiss her said action; that thereupon, on the same day, relatrix requested the court, of its own motion, to dismiss said action for the reason that it did not have jurisdiction of the subject matter because said court could not set out a homestead and dower to the relatrix in lands in Adair County, which request the court, by its order of record, denied, and then and there held that it had jurisdiction of the subject matter of the action; that respondent at all the times mentioned in the said petition was the duly qualified and acting judge of the Circuit Court of Putnam County and that the reasonable market value of her homestead and dower...