Westmeyer v. Gallenkamp
| Decision Date | 05 February 1900 |
| Citation | 55 S.W. 231,154 Mo. 28 |
| Parties | WESTMEYER et al., Appellants, v. GALLENKAMP |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Reversed and remanded (with directions.)
J. C Kiskaddon for appellants.
(1) A statute in force at the time Bernard Westmeyer, the common source of title, died is: "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." R S. 1855, p. 672, sec. 21. This right of the widow is in the nature of a life estate. She could convey it, and her grantee had the same estate she had and no other or greater. If ousted, she or grantee could maintain ejectment for it. She and her grantee in possession could, under it, defend in ejectment brought against them. It could only be terminated by the lawful admeasurement of her dower, or by her death. Stokes v. McCallister, 2 Mo. 166; Jones v. Manly, 58 Mo. 564; Brown v. Moore, 74 Mo. 635; Sherwood v. Baker, 105 Mo. 478; Miller v. Tally, 48 Mo. 504; Roberts v. Nelson, 86 Mo. 25; Carey v. West, 139 Mo. 174; Gentry v. Gentry, 122 Mo. 202. (2) Prior to the statute of 1889 the widow could not convey her dower before it was admeasured. The only effect of her deed was to convey her quarantine. Carey v. West, 139 Mo. 177; Waller v. Mardus, 29 Mo. 25. (3) The service did not comply with the requirements of the statute, and the judgment rendered on such service, when there is no appearance of the defendants or jurisdiction otherwise gained, is absolutely void. Hewitt v. Weatherby, 57 Mo. 278; Ray Co. v. Barr, 57 Mo. 291; McLaughlin v. Burk, 60 Mo. 437; Adams v. Cowles, 95 Mo. 507; Laney v. Garbee, 105 Mo. 359; Janney v. Spadden, 38 Mo. 402. (4) A minor must be served with process in the same manner as an adult. Fischer v. Siekman, 125 Mo. 166; Railroad v. Campbell, 62 Mo. 588; Smith v. Davis, 27 Mo. 298; Shaw v. Gregoire, 41 Mo. 412. (5) The court, therefore, by such service of process, acquired no jurisdiction of the persons of any of the defendants, except, possibly, Mary Westmeyer (and that is questionable), and, consequently, it had no authority to appoint a guardian ad litem to appear for them. Campbell v. Laclede G. L. Co., 84 Mo. 352; State v. St. Louis, 1 Mo.App. 503; Brown v. Woody, 64 Mo. 550; Adams v. Cowles, 95 Mo. 507; Blodgett v. Schoeffer, 94 Mo. 671; Higgins v. Beckwith, 102 Mo. 462; Railroad v. Campbell, 62 Mo. 588; Hull v. Cavanaugh, 6 Mo.App. 143; Gibson v. Chouteau, 29 Mo. 565; Shaw v. Gregoire, 41 Mo. 411; Smith v. Davis, 27 Mo. 300.
J. W. Booth and Chas. F. Gallenkamp for respondent.
(1) The circuit court is a court of general jurisdiction, and nothing is to be taken as out of its jurisdiction unless it specially appear to be so. Homer v. Cook, 118 Mo. 478; McClanahan v. West, 100 Mo. 322. (2) When a court of general jurisdiction acquires jurisdiction of the parties to an action by personal service of its process its judgment afterwards rendered can not be collaterally attacked and defeated. If the party has actual personal notice of the suit given him by personal service of the writ of summons, then, no matter how defective the service may be, the judgment is proof against all collateral attack. It may be set aside on appeal or writ of error on account of a defective personal service, but until set aside it remains a valid judgment. Leonard v. Sparks, 117 Mo. 103; Thompson v. Railroad, 110 Mo. 147; Freeman on Judg., sec. 126; Brown on Jurisd., sec. 45; Bunce v. Bunce, 59 Ia. 535; Drake v. Duvenick, 45 Cal. 455. (3) The return of the writ in the suit in partition made in 1856 and here collaterally attacked and claimed to be void is that the sheriff in, etc., on, etc., served the petition and writ on each of the defendants "by reading the same to each of them," and also by delivering to Mary Westmeyer a certified copy of the petition. This was a perfect service on Mary Westmeyer and a defective (but not void) personal service on each of the other defendants. (4) In passing on the question as to whether said return is "absolutely void," or merely "defective," it should be borne in mind as, perhaps, explanatory of the service being made as it was, that prior to the enactment of the statute as published in sec. 7, R. S. 1855, vol. 2, p. 1223, the reading of the writ and petition to the defendant was a full and complete service of a writ of summons. See Acts of 1849, p. 78, secs. 4 and 5. (5) The defective return in the partition case herein referred to is cured by the statute of jeofails in force in 1856. 2 R. S. 1855, p. 1255-6, sec. 10, clause 3. (6) The common law of England, not local to that kingdom, and not inconsistent with the constitution of the United States or of this State, nor with the statute law of this State, was expressly adopted by this State by statute, long before the right of quarantine involved in this case vested. (7) By the common law the marriage of a widow forfeited her right of quarantine. 2 Scribner on Dower, 59, sec. 15. (8) The above common law forfeiture is not inconsistent with the Constitution of the United States, nor of this State, nor with any statute of this State. (9) Possession of land under a forfeited widow's right of quarantine could not defeat an ejectment by the lawful heirs, nor protect the heirs from the operation of the statute of limitations.
This is an action in ejectment to recover lot 2 in block 3 in Meuse's addition to the city of Washington in Franklin county, Missouri. 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 twenty-one thirtieths of said lot (except nine inches off the east side thereof, the title of which is conceded to be in defendant), unless their title has been divested 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 on the premises with his family, which consisted of his wife Henrietta, and six minor children, all under the age of 14 years. 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 massages and plantation thereto belonging, without being liable to pay any rent for the same." [1 R. S. 1855, p. 672, sec. 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 R. S. 1855, p. 1112, sec. 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, where 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 R. S. 1855, p. 1223, sec. 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 litigation, acquire jurisdiction of the person of an infant, and bind...
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