Waugh v. Blumenthal

• Decision Date: 31 March 1859
• Parties: WAUGH, Appellant, v. BLUMENTHAL, Respondent.
• Court: Missouri Supreme Court

28 Mo. 462

WAUGH, Appellant,

v.BLUMENTHAL, Respondent.

Supreme Court of Missouri.

March Term, 1859.

1. Infants may be plaintiffs in statutory proceedings for partition.

2. The act of February 21, 1845 [R. C. 1845, p. 764], providing for the partition of land, &c., authorized the joinder of all the parties in interest as parties plaintiff in a statutory proceeding for partition. [Bompart v. Roderman, 24 Mo. 385, overruled.]

Appeal from St. Louis Land Court.

This was an action of ejectment for a portion of a block of ground in the city of Carondelet. The plaintiff was obliged to make title through a judgment and sale in a partition suit, commenced under the partition act of February 21, 1845, in which all the parties were petitioners, and some of them were minors who appeared in the suit by guardian. At the trial the plaintiff offered in evidence the record of the partition suit and also the sheriff's deed to himself, having previously traced the title up to the parties to the partition proceeding. The defendant objected to the record of the partition suit and the sheriff's deed, and specified the following objections and no others: 1st, that all the parties to said partition suit were petitioners, and that therefore the same was an ex parte proceeding not authorized by law, and so a nullity. 2d, that all the petitioners in said suit except one were minors under the age of twenty-one years and appeared in said suit by guardian. It was admitted that said record and deed were regular and sufficient in every particular except those above specified. The court excluded said record and deed on the ground that they were void for the reasons above stated. The plaintiff took a nonsuit, with leave, &c.

Bennett, Field and Primm, for appellant.

I. The record and deed were admissible. (See Thornton v. Thornton, 27 Mo. 302.)

F. A. Dick, for respondent.

RICHARDSON, Judge, delivered the opinion of the court.

This case presents only two propositions, which are, first, whether a judgment rendered in a partition proceeding is void, so that it can be collaterally assailed, on the ground that all the parties in interest united in the petition; and second, whether it is void because some of the petitioners are infants who appeared by guardian. The second proposition was discussed and expressly decided in the case of Thornton v. Thornton, 27 Mo. 302, and some of the reasons given in support of the judgment in that case intimated the opinion of the majority of the court on the first question that arises in this case.

In suits at common law there are opposing parties, usually designated by the names of plaintiff and defendant; but an action, in its general sense, is a proceeding for the purpose of having determined, by the judgment of a court, a real controversy between parties; and, on this idea, our statute regulating practice in civil cases (R. C. 1855, p. 1283) permits parties to a question in difference, which might be the subject of a suit, to agree upon a case containing the facts upon which the controversy depends, and to present a...