142 Mo. 38 | Mo. | 1897
This is an action by plaintiff to recover against defendants the sum $2,000 which was taxed in his favor by the circuit court of the city of St. Louis for services rendered defendants as their guardian ad litem in a proceeding to contest the validity of the will of Patrick Yore, their deceased grandfather. There was judgment in favor of plaintiff for the sum claimed, from which defendants were granted an appeal to the St. Louis Court of Appeals, and the cause was by that court transferred to the Supreme Court upon the ground of there being involved a constitutional question.
On November 19, 1890, a suit was begun in the circuit court of St. Louis to set aside the will of Patrick Yore in which his children were plaintiffs, and the defendants herein, his grandchildren, all of whom were minors, were defendants. These defendants were all duly served with process, and thereafter the plaintiff, by an order of court duly entered of record, was appointed to act as their guardian ad litem in the cause. The guardian ad litem filed an answer on behalf of the minors, and on March 4, of the February term, 1893, of said court there was a verdict and judgment in favor of defendants sustaining the will. Real property of value of several hundreds of thousands of dollars was involved in that litigation.
On March 17, 1893, the plaintiffs in that case filed
An appeal from that judgment was taken by said minor defendants to the St. Louis Court of Appeals and that court on May 22, 1894, rendered its opinion affirming the judgment of the circuit court as to the allowance of $2,000 to the guardian ad litem but reversed that part of the judgment which provided “that if the same be not otherwise paid, that then the same shall be recovered out of the interest of said minor defendants in the following described real estate,” and awarding special execution. Walton v. Yore et al., 58 Mo. App. 562.
This action is predicated upon the judgment rendered by the circuit court in that ease, and which was affirmed by the St. Louis Court of Appeals. On the trial of the case in hand the facts substantially as herein stated were made to appear.
The case was tried by the court, and at the close of plaintiff’s evidence the defendants asked the court
At the close of all the evidence defendants asked the court to declare the law to be as follows: “The court declares the law to be that under the pleadings and the evidence in the case, the allowance or judgment sued on by plaintiff in this action is void, because the court rendering the same had no jurisdiction of the persons of defendants against whom it was rendered, or of the subject-matter thereof, in the action in which it was rendered for the purpose of rendering the same; and the judgment as rendered is contrary to the provisions of section 30, article II of the Constitution of Missouri; and that therefore a verdict should be found in favor of the defendants herein.” This declaration of law was also refused and defendant duly excepted.
On March 5, 1895, the court found the issues joined herein in favor of the plaintiff, and rendered judgment against the defendants for the sum of $2,146, that being the amount of the judgment sued upon, together with accrued interest. Defendants then filed motions for a new trial, and in arrest, which were overruled, and they perfected their appeal.
It is insisted by defendants that the circuit court had no jurisdiction of either the subject-matter of the motion, or the persons of the minor defendants, for the purpose of rendering the money judgment which it rendered against them in the will suit. That the effect of the judgment was to deprive them of their property without due process of law contrary to section 30, article II of the State Constitution, and for that reason the judgment was void and could not lawfully be made the basis of another action, and that the judgment of the court below in this case is likewise
“Due process of law” and “law of the land” are synonymous terms, and mean the same. There are many definitions of “due process of law,” which, while differing in the language used, do not differ in their scope and meaning. “The better and larger definition of due process of law,” says Chancellor Kent [2 Kent’s Com. 13.], “is that it means law m the regular course, of administration through courts of justice.” in Bertholf v. O’Reilly, 74 N. Y. 519, it was said: “In judicial proceedings, due process of law requires notice, hearing and judgment.” See, also, People ex rel. Witherbee v. Supervisors, 70 N. Y. 228.
Mr. Justice Cooley, in his work on Constitutional Limitations [6 Ed.], p. 491, says: “Individual citizens require protection against judicial action as well as against legislative; and perhaps the question, 'what constitutes due process of law, arises as often when judicial action is in question as in any other cases. ...... The proceedings in any court are void if it wants jurisdiction of the case in which it has assumed to act. Jurisdiction is, first, of the subject-matter, and second, .of the person -whose rights are to be passed upon. A court has jurisdiction of any subject-matter if, by the law of its organization, it has authority to take cognizance of, try and determine cases of that description. If it assumes to act in a case over which the law does not give it authority, the proceeding and judgment will be altogether void, and rights and property can not be divested by means of them.” The same author says, page 431: “Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College case.” (4 Wheat, 518.) “By ‘the law of the land’ is most clearly meant the general law; a law which hears before it condemns; which proceeds
That defendants had no notice of the purpose of plaintiff to ask the trial court to make him an allowance for his services as their guardian ad litem in the will case seems to be conceded by all parties. If, therefore, it was necessary that they should have had such notice, the allowance made by the court was void, because of the want of jurisdiction over the persons of defendants. But it seems to be contended by plaintiff that the court, having acquired jurisdiction over defendants in the will contest, it retained that jurisdiction for the purpose of the allowance; that the defendants were the wards of the court which had the power to act for them in such matter, and whose duty it was to do so. No rule of law is better settled than that when a court acquires jurisdiction of the parties to a suit it retains that jurisdiction until the ease is finally disposed of, and that they are bound to take notice of all proceedings in the cause before final judgment, but after final judgment they are not regarded as being before the court and must have notice. Roberts v. St. Louis Merchants’ Improvement Company, 126 Mo. 460; 1 Freeman on Judgments [4 Ed.], secs. 142, 143; Fithian v. Monks, 43 Mo. 502; Janney v. Spedden, 38 Mo. 395.
Now, as has been seen, final judgment had been rendered in the will case before the motion for allowance was-filed. The motion for a new trial for the purpose of the motion for allowance was not a suspension of the judgment, and the defendants must have had notice of the filing of the motion for allowance unless because of the fact that they were wards of the court it was unnecessary, to which we are unable to
When plaintiff filed his motion he assumed toward •defendants an entirely new and different attitude from that of guardian ad litem. Instead of being the protector and guardian of their interests, he assumed that of adversary; he became, as it were, plaintiff, instead of guardian ad litem, yet they had no notice of his dual position or of the change of his status toward them. The allowance was collateral to the will case; it was for a personal judgment against defendant for $2,000. It can not be justified upon the ground that it was cost in that case; nor could defendants have been expected to anticipate that such a course would be taken by one who had theretofore occupied toward them the position that plaintiff did.
From what has been said, it follows that the allowance was void for the want of jurisdiction of the defendants.
The next question is as to the power of the trial court to make the allowance if the proper steps had been taken. The power to appoint the guardian ad litem is not questioned, but the power to make him an
The Hotick case decides nothing more than that “one acting as next friend for an infant in litigation, has no authority to bind the infant by a contract for attorney’s fees.” So in the Dillon case it was held that a minor heir who was a party to the suit, and although benefited by the result equally with others who were ■parties thereto, was not bound either at law or in equity to contribute to the payment of the fee of an attorney who had been employed in the case. In the Kelley ease, the facts were that Kelley was appointed by the court in which the case was pending to defend a man who was under indictment for murder, and was unable to employ counsel, and after having defended him, Kelley brought suit against Andrew county in which the case was tried for the services rendered by him, and it was held that he could not recover. That case differs from the one in hand in the very important fact that the action was not against the defendant for whom the services were rendered, nor were they rendered at the instance of the county.
In this case the defendants were not capable of contracting; they had no guardian, and as it was the court’s duty in order that their interest might be protected, to appoint for them a guardian ad litem, by whose skill and ability there was secured to them a large estate which otherwise might have been lost, the services were not gratuitous, but were by order of court, and having been thus rendered, the power and authority to allow the guardian ad litem compensation for his services must be implied from the. power to appoint, as one of the court’s inherent powers. The allowance could not be made, however, upon the theory that it
For error in refusing the declarations of law asked by defendants the judgment is reversed and the cause remanded.