Westmeyer v. Gallenkamp

• Citation: 154 Mo. 28,55 S.W. 231
• Parties: WESTMEYER et al. v. GALLENKAMP.
• Decision Date: 05 February 1900
• Court: Missouri Supreme Court

55 S.W. 231

154 Mo. 28

WESTMEYER et al. v. GALLENKAMP.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

PARTITION — PROCESS — SERVICE ON INFANTS — IGNORANCE OF LAW — ADVERSE POSSESSION.

1. 2 Rev. St. 1855, p. 1112, § 8, requires summons in partition to be served in like manner as writs issued in ordinary civil actions. Under Id. p. 1223, § 7, personal service of summons is made either by reading the writ to the defendant, and delivering him a copy of the petition, or by delivering to him a copy of the petition and writ, or, when there are several defendants, by delivery to the defendant who shall be first summoned a copy of the petition and writ, and to such as shall be subsequently summoned a copy of the writ. Held, that a service of summons by reading the petition and writ to the several defendants, and delivering to defendant first mentioned in the return a certified copy of the petition, was insufficient.

2. Jurisdiction over an infant is not acquired by the appointment of a guardian ad litem, where service of process on such infant has not been had in the manner provided for service on an adult.

3. That a statute changing the mode of service of process may not have been distributed and brought to the knowledge of attorneys bringing a suit will not avail to sustain a service made under the repealed statute.

4. 1 Rev. St. 1855, p. 672, § 21, provides that, until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages and plantation thereto belonging, without being liable to pay rent. Held, that where dower had never been assigned by the heirs during the widow's life, the possession of the widow and grantees under a deed in a futile suit in partition of the premises is not adverse to the heirs during the life of the widow, and this notwithstanding the subsequent marriage of the widow.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Ejectment by Henry F. Westmeyer, Adolph Westmeyer, Amalia Hesse, and others against Edward W. Gallenkamp. Judgment for defendant, and plaintiffs appeal. Reversed.

J. C. Kiskaddon, for appellants. John W. Booth and C. F. Gallenkamp, for respondent.

BRACE, P. J.

This is an action in ejectment to recover lot No. 2, in block 3, in Mense's addition to the city of Washington, in Franklin county, Mo. The petition is in the usual form, and the answer is a general denial. Judgment was for the defendant in the circuit court, and the plaintiffs appeal.

There is no dispute about the facts. Bernard Westmeyer, who died intestate in the year 1854, is the common source of title. The plaintiffs are three of his children, and as his heirs at law are entitled to the undivided 21/30 of said lot (except nine inches off the east side thereof, the title to which is conceded to be in defendant), unless their title has been devested by a proceeding in partition in the circuit court of Franklin county, or by adverse possession. At the time of the death of the said Bernard he was residing with his family, which consisted of his wife, Henrietta, and six minor children, all under the age of 14 years, on the premises. By the law then in force it was provided that, "until dower be assigned, the widow may remain in and enjoy the mansion house of her husband and the messuages and plantation thereto belonging without being liable to pay any rent for the same." 1 Rev. St. 1855, p. 672, § 21. On the 20th of August, 1856, the widow of said Bernard, as plaintiff, instituted the suit in partition by petition and summons against her six minor children, of whom Mary, the oldest, was then aged about 15 years. The service of the writ of summons, as returned by the sheriff, is as follows: "Served the within petition and writ on Mary Westmeyer, Henry Westmeyer, Margaret Westmeyer, William Westmeyer, Adolph Westmeyer, and Louisa Westmeyer, in Franklin county, Mo., on the 21st of August, 1856, by reading the same to each of them, and also by delivering to Mary Westmeyer a certified copy of this petition." By the law then in force, the writ of summons in suits in partition was required to be served in like manner "as writs issued in ordinary civil actions" (2 Rev. St. 1855, p. 1112, § 8), and the personal service, with which alone we have to do in this case, required in such actions was as follows: "First, by reading the writ to the defendant and delivering to him a copy of the petition; or second, by delivering to him a copy of the petition and writ; * * * or fourth, when there are several defendants, by delivering to the defendant who shall be first summoned a copy of the petition and writ, and to such as shall be subsequently summoned a copy of the writ * * *" (2 Rev. St. 1855, p. 1223, § 7). After the return of the writ served as aforesaid, a guardian ad litem was appointed for the defendants, who answered, and in due course the suit proceeded to final judgment and a sale of the premises, at which one Christian Kruse, on the 10th of April, 1857, became the purchaser thereof, and received a sheriff's deed therefor, dated December 20, 1858. Pending these proceedings, the said Kruse married the widow, went into possession of the premises, and afterwards, by deed dated May 10, 1859, in which his wife joined, conveyed the same to one Frederick Schroeder, who then went into possession, and whose title the defendant has acquired by mesne conveyances, and he and his grantors have ever since been in peaceable and uninterrupted possession of the premises. Christian Kruse died in May, 1885, and the said Henrietta, after being again married, June 22, 188-, to one Hagemann, died on the 19th of May, 1894, and this action was commenced on the 18th of August, 1896.

1. By the construction placed upon the statute in question in Lenox v. Clarke, 52 Mo. 115, in which the fourth clause of section 7 was pieced out with the first, in order to sustain the service, it might be held that Mary Westmeyer was legally served with process in the partition suit, but by no possible construction could it be held that the other defendants, including the plaintiffs in this case, to none of whom was delivered either a copy of the petition or of the writ, was legally served; and this does not seem to be disputed. In some jurisdictions the doctrine once obtained that a court of general jurisdiction, possessing plenary chancery powers, could, by the appointment of a guardian ad litem, in a pending...