35 Mo. 342 | Mo. | 1864
Lead Opinion
delivered the opinion of the court.
This was a suit for partition. The case was submitted to the Circuit Court upon an agreed statement of the facts, and judgment was given for the plaintiffs, and the defendant appealed to this court.
From the agreed statement it appears that on the 12th day of January, 1852, the plaintiffs did own the interests set out and claimed in the petition, as tenants in common with defendant and others; and that on said day Charles Gregoire, the present defendant, commenced in the Circuit Court of St. Eran§ois county a suit for partition of the land, making the present plaintiffs as well as other owners, defendants ; that the present plaintiffs, were at that time infants, having no regularly appointed guardian; that at the
Upon this statement the Circuit Court declared, “ as conclusions of law, that the appointment of Wm. E. Brady as guardian ad litem for present plaintiffs in the partition suit mentioned in the agreed facts, being without the i>revious service of a summons or notice on said Philip Shaw and John Shaw, or their father Thomas Shaw, was irregular and void; and that the judgment and sale in said cause was for that reason void as to the said Philip and John Shaw, and they are now the owners as tenants in common with defendant in the tract of land mentioned in the petition,” and thereupon gave the judgment from which the defendant has appealed.
In the case of Hite v. Thompson, 18 Mo. 461, where the facts were very similar to those of this case, and the statute law applicable to the facts was the same, it was held that the parties were, “ under the law concerning ‘ partition,’ properly in court.” The court thus having jurisdiction of their persons could proceed to render a valid judgment. That case so completely covers this, that it is unnecessary to make any further remarks upon the point upon which the case was decided. The error of the Circuit Court is apparent.
We therefore re-state, that the taking of a judgment at a term earlier than that fixed by law, is an irregularity, not affecting the validity of the judgment, and which may be set aside on motion, and that the refusal of the court to set aside such judgment when a proper motion is made for that purpose, is error.
In this case, as we hold the judgment in the first partition case to be valid, the judgment of the Circuit Court will be reversed and the cause remanded.
Rehearing
On motion for re-hearing.
The record of the first partition suit was not before this court, but instead, an agreement of the facts. From this agreement we are led to the conclusion, that the suit was commenced by notice as contemplated by