Todd v. Stokes

Decision Date13 December 1948
Docket Number40635
Citation215 S.W.2d 464,358 Mo. 452
PartiesWilliam David Todd, Jr., a Minor, by Lena Todd, His Guardian and Curator, Respondent, v. Fleta Stokes and Leta Bosley, Appellants
CourtMissouri Supreme Court

Appeal from Dallas Circuit Court; Hon. C. H. Jackson Judge.

Affirmed in part, and reversed and remanded in part (with directions).

M. J Huffman, D. Raymond Carter and Bradshaw & Fields for appellants.

(1) The trial court erred in not sustaining appellants' application for a continuance. When the case, tried before the convening of the General Assembly of the State of Missouri, was reopened for the taking of additional testimony after the General Assembly was in session, it was the mandatory duty of the trial judge to sustain the statutory affidavit and application for continuance filed by appellants' attorney who had handled the case throughout and who was then as a state representative from Wright County in attendance on said session of the Missouri General Assembly. State v. Myers, 179 S.W.2d 72; Sec. 96, Civil Code of Mo., Laws 1943, p. 383; Kyger v. Koerper, 207 S.W.2d 46; State ex rel. Snipe v. Thatch, 195 S.W.2d 106. (2) The trial court erred in ordering partition without including all the necessary parties. The only theory upon which judgment can be entered for respondent (plaintiff below) is that after Lena Hubbard was divorced by William David Todd in Webster County Circuit Court in 1932, she thereafter remarried Mr. Todd in 1933 before the birth of respondent in July, 1934. This is the only basis upon which respondent's status as an heir of William David Todd deceased, can be established. If, as respondent contends, and appellants deny, such a remarriage did occur it can only be established upon the testimony of Lena Hubbard Todd, who, in order to explain her subsequent marriage to another man, says that in November, 1934, she was awarded a decree of divorce from William David Todd because of his alleged fault or misconduct. If this is true, she retained her dower interest in the land which is the subject of this suit. Sec. 331, R.S. 1939. (3) Having an interest in the land to be partitioned, Lena Hubbard Todd was a necessary and indispensable party to this suit. Harper v. Hudgins, 211 S.W. 63; Secs. 1713, 1714, R.S. 1939; Keller v. Keller, 93 S.W.2d 157; Lilly v. Menke, 126 Mo. 190; Carson v. Hecke, 222 S.W. 850; Scoggin v. Goff, 137 S.W.2d 694; Dameron v. Jameson, 71 Mo. 97.

Seth V. Conrad, James P. Hawkins and Theo. G. Scott for respondent.

(1) The circuit court had jurisdiction to hear and determine the issues: Sec. 1709, R.S. 1939. (2) Under statute providing that the issue of all marriages decreed null in law or dissolved by divorce shall be legitimate, a decree annulling the marriage is not necessary in order to render the children legitimate, there being evidence that would justify the court in declaring the marriage null and void. Green v. Green, 126 Mo. 17. (3) Where defendant married decedent in good faith their children are legitimate though at the time of the marriage decedent had a wife living. Green v. Green, 126 Mo. 17. (4) Marriage without observing statutory regulations, if made according to the common law, is valid. Smith v. Railway, 174 S.W.2d 900. (5) You do not have to prove issuance of a marriage license and performance of ceremony to prove marriage. Thomson v. Thomson, 163 S.W.2d 792. (6) The presumption of marriage is a strong presumption of law founded on good morals and public policy. Hartman v. Valier & Spies Milling Co., 202 S.W.2d 1. (7) A default divorce judgment is, in a later action between the parties, evidence that prior to divorce, they were married. Butterfield v. Butterfield, 187 S.W. 295. (8) The trial court had heard most of the evidence; he was familiar with the activities of the various attorneys who had been employed and had appeared in the case for appellants; the affidavit for a continuance stated mere conclusions in the first instance and does not of itself meet the requirements set forth in the concurring opinion of Judge Hyde in the case of Kyger v. Koerper, 207 S.W.2d 46. (9) While it is not the law that the interest of Lena Todd made her an indispensable party to the suit, she should be made a party to the action and her dower assigned. However, this case need not fail for the reason that Lena Todd has not been made a party and a judgment for the assignment of her dower included in the decree. The decree from which appellants have appealed to this court is interlocutory and the trial court may at any time set aside its judgment and admit a new party any time before final judgment. Parkinson v. Caplinger, 65 Mo. 290. (10) The court can permit the plaintiff to amend his petition making Lena Todd a defendant and setting forth in the amended petition the interest of Lena Todd as to her dower interest and praying that said dower interest be set off in one-third of the real estate described and to ask for partition in kind or the sale of the fee of the remaining two-third interest, after dower has been assigned, and also praying that the remainder of the one-third of the real estate assigned as dower be partitioned in kind or said remainder sold subject to dower. Duncan v. Duncan, 23 S.W.2d l.c. 94.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION
BRADLEY

Action to partition land in Webster County; the answer alleged that plaintiff had no title or interest in the land and was "not entitled to file this partition suit." The venue was changed to Dallas County; the court found to the effect that plaintiff had an undivided one-third interest in the land; entered an interlocutory decree for partition, but found that the land should not be partitioned in kind and ordered sale, subject to two mortgages mentioned, and that the proceeds be apportioned. Defendants appealed.

Only two assignments of error are made: That the court erred in failing to continue the cause upon application therefor by defendants, and that the court erred in ordering partition "when the record showed that all those having an interest in the land to be partitioned had not been joined as parties to the suit."

William David Todd died March 9, 1945, seized of the land in question. Defendants Fleta Stokes and Leta Bosley are his daughters and the court found that plaintiff William David Todd, Jr. is the son of William David Todd, deceased, and that these three owned the land. The battle below waged vigorously on the question as to whether William David Todd, Jr. was the son of deceased. As stated, the trial court found that he was such son and that he was born in lawful wedlock. Since the finding on the facts is not challenged it will not be necessary to state the evidence upon which the court made the finding.

Was error committed in failing to continue the cause as appellants contend? The application for continuance was based on Sec. 96, Laws 1943, p. 383, which deals with a continuance when counsel is a member of the legislature. M.J. Huffman, Esq., member of the bar of Wright County, and other attorneys, were counsel for appellants. Mr. Huffman was a member of the legislature. The petition was filed March 20, 1946; answer filed April 10, 1946. August 10, 1946, the venue was changed to Dallas County on application of appellants. September 6, 1946, the cause came on for hearing at which time Mr. Huffman was present and took the leading part for the defense. Both sides rested at the close of the hearing on September 6th. Thereafter, on September 28th, the trial judge advised counsel on both sides that when court convened, December 12, 1946, we infer, in Dallas County, that a decree for defendants (appellants) would be entered. However, on December 12, plaintiff (respondent) filed a motion to set aside submission and hear further evidence, and this motion was sustained on day filed, and the cause set for further evidence on January 13, 1947.

On January 13th, Mr. Huffman filed his verified application for a continuance, setting up that he was a member of the legislature, the Representative from Wright County, and asked that the cause "be continued in accordance with the statute governing continuances of this nature." January 17th, the court made an order setting the cause for February 21st, but no mention was made of the application to continue. On that date "the court, by its order duly made and entered of record, continued said cause to March 14, 1947." On March 14th the cause came on for hearing. Mr. Huffman was present and took the leading part for appellants. He proceeded into the hearing without mention of his application for a continuance. Respondent introduced several additional witnesses and Mr. Huffman cross examined these.

Sec 96, Laws 1943, p. 383, mentioned supra, is as follows: "In all civil cases or in criminal cases pending in any court of this state at any time when the general assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney, solicitor or counsel of such party is a member of either house of the general assembly, and in actual attendance on the session of the same, and that the attendance of such party, attorney, solicitor or counsel is necessary to a fair and proper trial or...

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