Little v. BrowningLittle v. Browning
It is stipulated that Eliza J. Hornbeck is the common source of title. She acquired the land in 1874. In 1880 she died intestate. She was survived by her husband, Isaac, and by six children, the plaintiffs Martha J. Little and Alice H. Reynolds and defendants John Hornbeck, Frank Hornbeck, Mary Young Zimmerman and Elizabeth Sherwood. In 1882 Mary J. Malloy bought the interest
There was evidence that Mrs. Malloy, West and Mullins, upon their purchase, went into immediate pоssession; that they and their grantees have been in “the open, notorious, adverse and exclusive possession of the land ever since, claiming to own the same, paying taxes and making valuable improvements thereon.” There was conflicting
I. Respondents concede the life estate of Isaac Hornbeck, which fell in in 1907, prevented the Statute of Limitations from beginning to run time to bar this action, which was begun in 1916. [Reed v. Lowe, 163 Mo. l.c. 535.]
II. It is contended the court had no jurisdiction of appellants in the partition suit.
(1) (a) There was servicе upon Mrs. Little. While the summons and return give her name as Martha J. Hornback, though her name was then Hornbeck, she was called upon to take cognizance of it. The judgment is not void because her name was Process: mispelled. [Turner v. Gregory, 151 Mo. l.c. 103; Idem Corrigan v. Schmidt, 126 Mo. l.c. 311; Martin v. Sonans. Barron, 37 Mo. 301.] The names Hornbeck and Hornback are idem sonans. This rule applies if the attentive ear finds difficulty in distinguishing the names when pronounced. [Simonson v. Dolan, 114 Mo. l.c. 179; Heberling v. Moudy, 247 Mo. l.c. 541.] The accent is upon the first syllable of both Hornbeck and Hornback and the resultant remission, lack or weakening of stress upon the final syllable in each name modifies the sound of both the a and e in thosе syllables toward a neutral sound. This is formulated into a rule of pronunciation by lexicographers which is derived from common practice and common knowlеdge. The similarity in sound between a and e, even in accented syllables, has been held sufficient to justify holding names idem sonans. [Bergman‘s Appeal, 88 Pa. St. l.c. 123; State v. Bean, 19 Vt. 532.]
(b) Martha J. was not of age when the partition suit was begun. Shе had no general guardian and no
(2) The judgment roll, files and records in the partition suit were put in evidence. The abstract shows that everything in that case was offered in this. It is stated, in effect, that the offerings included the summonses issued, the Judgment: service upon defendants and the entire record in Appearance the case. The judgment in that case does not recite by Attorney. thаt service was had but, on its face, proceeds upon a recital that defendants had previously appeared. It shows Mrs. Reynolds did not appear аt the trial. There was no summons issued for Mrs. Reynolds (then Hornbeck) and no service was had upon her. Three other defendants had been served. An effort at service uрon a fourth had been made. Respondents contend appellant Alice appeared June 8, 1883, by her attorney, and took leave to file answer and thereby waived objections to lack of service. The record in the partition suit shows that on June 8, 1883, the following entry was made: “P.B. Malloy et al. v. Isaac Hornbeck et al. Now come the defendants by attorney and move the court to file answer in ninety days, which is granted and the cause continued.” The judgment was entered under a caption giving the names of plaintiffs and of all of the defendants. It recited: “Now come the plaintiffs by attorney, and the defendants having appeared at the last term of the court and taken leave to file answer herein,” etc. Respondents’ position is that these entries show such an appearance by Alice Hornbeck as to render the judgment
For a like reason a case in which only one of several dеfendants has been served and an appearance is made for “the defendants,” such as Beal v. Harrington, 116 Ill. l.c. 119, 120, is distinguishable. In Kerr v. Swallow, 33 Ill. l.c. 380, the same rule was applied to defendants, none of whom had been served.
A rule contrary to that in Bell v. Brinkman, supra, and like cases was applied in Ely v. Tallman, 14 Wis. 28; Kenyon v. Shreck, 52 Ill. l.c. 384; Hunt‘s Heirs v. Ellison‘s Heir, 32 Ala. l.c. 181, et seq.; Cole v. Johnson, 53 Miss. l.c. 97; Seedhouse v. Broward, 34 Fla. l.c. 520; Sullivan v. Sullivan, 42 Ill. 315.
In no case, however, do we find it held that a person non sui juris, who has not been served, is brought in by such recitals as were held goоd as to persons sui juris in the cases last cited. In fact, it is indicated (Hunt‘s Heirs v. Ellison‘s Heirs, supra) that the rule is applicable only to persons sui juris. Alice Hornbeck was a minor. Her capacity to act for herself was limited. We are of opinion she is not shown to have appeared.
III. This disposes of the questions raised by counsel. It results that the judgment is affirmed as to Martha J. Little, and is reversed and the cause remanded as to Alice Reynolds. All concur.