267 Mo. 713 | Mo. | 1916
This is a suit to set aside the will of Rev. John Gruender, deceased.
From a verdict and judgment revoking the will, upon trial in the circuit court of Cole County, defendants have duly appealed to this court.
The case was argued and submitted at the April (1915) term of this.court, and was then assigned to the late lamented Judge Brown. His untimely death intervening necessitated a reassignment of the case which was recently done. Hence the delay in delivering an opinion in the case.
The conclusion that we have reached in the case renders it unnecessary that we should burden this opinion with a detailed statement of the facts disclosed by the somewhat voluminous record in the case, but we shall confine the statement to such facts only as shall be necessary to a determination of the case upon this appeal.
That portion of the caption of the petition describing the plaintiffs was as follows:
“Augala Gruender, Henry Behler and Ignatz Gruender, heirs at law of Joseph Gruender, deceased. Ignatz Beller, Frederick Beller, Clara Beller, Joseph Beller, heirs at law of Lissetta Beller, Andrew Amelunsen, Ignatz Amelunsen, Maria Amelunsen, Elizabeth Amelunsen, August Amelunsen, heirs at law of Antoinette Amelunsen, deceased, plaintiffs.”
The petition contained the following allegation:
“Plaintiffs for their cause of action say that John Gruender died testate at the county of Cole and State o'f Missouri on the 20th day of March, 1909, leaving surviving him as his heirs at law, Joseph Gruender, Lissette Beller, Antoinette Amelunsen and Ignats Gruender.”
There was no further allegation in the petition as to the interest of plaintiffs in the estate of the deceased in the event his will should be revoked.
Appellants, seeking a reversal of the judgment below, urge among other grounds the following:
(1) That there was no evidence introduced tending to show that the plaintiffs or any of them would share in the distribution of decedent’s estate if the will were revoked and that, therefore, the court erred in overruling the defendant’s demurrer to the evidence which was offered at the close of all the evidence.
(2) That the petition fails to state facts sufficient to constitute a cause of action in that the petition does not allege sufficient facts to show that the plaintiffs were interested in the probate of said will. ■
Since it is necessary that the plaintiff have such an interest to enable him to institute the suit to contest the validity of the will, it, necessarily, follows, we think, that such facts must be alleged and proven upon the trial unless admitted by the pleadings of the proponent.
It has long been the rule in this State that in statutory actions- “the party suing must bring him
Respondents insist that this defect in the proof relates merely to the want of the plaintiffs’ “legal capacity to sue.” That it was, therefore, such a matter as should have been raised by demurrer if it appeared upon the face of the petition (Sec. 1800, E. S. 1909), or by answer if it did not appear upon the face of the petition (Sec. 1804, B. S. 1909), and that the defendants having failed to raise it specially, either by demurrer or by answer, thereby waived the objection (Sec. 1804, supra) and relieved plaintiffs of the necessity of making the proof. If the defect is one that relates merely to the ‘ ‘ legal capacity ’ ’ of the plaintiffs to sue, the position taken by respondents is sound. [Baxter v. St. Louis Transit Co., 198 Mo. 1; Crowl v. Am. Linseed Co., 255 Mo. 305, l. c. 327-328, and cases therein cited.]
Was .the defect one which involved the “legal capacity” of the plaintiffs to sue? We think not.
The phrase “that the plaintiff has not legal capacity to sue” found in the Code “has reference to some legal disability of the plaintiff, such as infancy, idiocy, coverture,” etc., or that the person attempting to sue in a representative capacity such as curator, administrator, etc., “has no title to the character in which he sues,” and has no reference to the fact that the petition fails to show a right of action in the plaintiff. [Bliss on Code Pleading (3 Ed.), secs. 407-8; Ward v. Petrie, 157 N. Y. 301; McKinney v. Minahan, 119 Wis. 651; Pence v. Aughe, 101 Ind. 317; Brown, Executor, v. Critchell, 110 Ind. 31; Howell v. Iola Portland Cement Co., 86 Kan.
We are of the opinion that the defect is one which properly falls within», the sixth clause of section 1800, Revised Statutes 1909, viz., “that the petition does not state facts sufficient to constitute a cause of action,’’ and hence was a matter that was not waived by virtue of failing to comply with the provisions of section 1804, supra.
“It is elementary that a complaint good in law must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff.” [Hunt v. Monroe, 32 Utah, 428.] To the same effect are: Biddle v. Boyce, 13 Mo. 532; State ex rel. v. Dodson, 63 Mo. 451; 31 Cyc. 102, and cases therein cited; Niemi v. Stanley Smith Lumber Co., 149 Pac. 1033, l. c. 1035.
“When the plaintiff is a natural person, under no legal disability to maintain actions, a failure to state a cause, of action in his own favor goes to the sufficiency, in substance, of the petition, not to his legal capacity.” [M. K. & T. Ry. Co. v. Lenahan, supra, l. c. 295.]
In the case of Board of Commissioners of Tipton County v. Kimberlin, 108 Ind. 449, l. c. 452-3, it was said:
“It has always been held by this court, that the second statutory cause for demurrer to a complaint, namely, ‘that the plaintiff has not legal capacity to sue,’ has reference only to some legal disability of the plaintiff, such as infancy, insanity or idiocy, and not the fact, if it be the fact, that the complaint on its face fails to show any cause or right of action in the plaintiff. [Dale v. Thomas, 67 Ind. 570; Dewey v. State ex rel., 91 Inch 173; Traylor v. Dykins, 91 Ind. 229.]
“But we have often held, and correctly so we think, that a demurrer to a complaint for the fifth*721 statutory cause of demurrer, namely, ‘that the complaint does not state facts sufficient to constitute a cause of action,’ calls in question not only the sufficiency of the facts stated to constitute a cause of action, but also the right or authority of the particular plaintiff to bring and maintain a suit upon such cause of action. [Pence v. Aughe, 101 Ind. 317; Wilson v. Galey, 103 Ind. 257; Walker v. Heller, 104 Ind. 327; Frazer v. State to use, 106 Ind. 471.] ”
Since the matter was such as was not waived by failing to make specific objection either by demurrer or answer, we are of the opinion that the general denial contained in one of the separate answers filed was sufficient to raise the issue of fact and that plaintiffs were thereby required to prove the existence of such facts as would show them entitled to maintain the suit. Having failed to do so, the court erred in overruling the-demurrer to the evidence.
II. It is further contended that the petition failed to state facts sufficient to constitute a cause of action in that it failed to allege facts showing that plaintiffs were interested in the probate of the will as required by section 555, Eevised Statutes 1909. The body of the petition does not allege facts that would show that plaintiffs were the heirs of the deceased testator, but gives the names of four persons (other than plaintiffs) who are alleged to have been the heirs of the testator, The caption of the petition describes the three groups of plaintiffs as the respective heirs of persons bearing the same names as three of the heirs alleged in the body of the petition and respondents insist that the petition, in this, regard, may be aided by the matters contained in the caption. Since the case must be reversed and remanded, it becomes unnecessary to determine whether or not the' petition was, in this regard, fatal
The judgment is reversed and the' cause remanded.
PER CURIAM. — The foregoing opinion by Williams, C., is adopted as the opinion of the court.