234 Mo. 486 | Mo. | 1911
— Lizzie Smith, one of the twenty-two heirs at law of "William Moseley, deceased, filed a partition suit, making the other heirs defendants, in the circuit court of Boone county, on November 10', 1904, to sell" for division the remaining real estate of .their ancestor, who died in 1882, leaving a will setting forth the amount of the several advancements" made in his lifetime to his. children, and requiring such, advancements to be charged to the respective child who had received them, on the final distribution of the testator’s estate.
The petition prayed for the sale of the land, since it was not divisible in kind on account of the large number of heirs, and that the proceeds should be divided according to the directions of the will of the testator.
At a final settlement of the personal estate of the testator, to-wit, in 1889, the advancements made to all of the children of the testator were equalized, except as to the advancement made to John P. Moseley, which had been so large that it exceeded his distributive sháre in the personal estate of his father by $522. John P. Moseley died before the bringing of the partition suit, leaving his son, John Moseley, and three other children as his heirs. John Moseley was personally served with process and a copy of the petition in the partition suit, and made default therein, for which judgment was rendered against him. Thereafter, Lizzie Smith filed an amended petition, making substantially the same allegations contained in her original petition, except a further allegation that the overplus of the advancement to John P. Moseley beyond his distributive share in his father’s estate, to-wit, $522, should bear interest at six per cent from the date of the final settlement of the personal estate, to-wit, February 13, 1889, and claiming that the amount, with interest so reckoned, should be charged against the portion of the proceeds of the sale of the
Thereafter, sneh proceedings were had in the partition snit as, at the Jnne term, 1905, of the circuit court of Boone county, had resulted in a confirmation of the sale of the land and the- execution of deeds to the purchasers, and a division of the proceeds among all the heirs except John Moseley, who refused to accept the amount tendered him by the sheriff, because the court in its judgment on the amended petition had charged him as one of the four children and heirs of John P. Moseley with his proportion of the interest on the advancement made to his father.
Thereafter, on the 9th day of October, 1906-, John Moseley filed a written motion in said cause in the circuit court of Boone county, praying the setting aside of so much of the judgment rendered therein on the amended petition,, as charged the amount coming to him as one of the’ four children of John P. Moseley with a proportion of the ■ sum of the advancement and interest thereon made to his father. He alleged as the ground of this motion, that no such claim was made in the original petition of which a copy and summons had been served on him and wherein he had defaulted. This motion to set aside and vacate said judgment is still pending in the circuit court of Boone- county.
On the same day, October 9, 1906, the said John Moseley sued out a writ of error from this court to bring before it for review the said judgment rendered in the circuit court of Boone county. In his written application for the writ, he set forth the name of Lizzie Smith as plaintiff, and the names of himself and twenty other heirs as being parties to the partition suit wherein the judgment had been rendered in the circuit court of Boone county, but he took out a writ in his own name as plaintiff in error without joining any of his co-defendants therein or making any showing for failing so to do. Neither have his co-
First, Because the co-defendants of plaintiff in error have not been served with notice and are not before this court;
Second, Because the same questions presented to this court by this writ of error are now pending in the motion filed by the plaintiff in error in the court below;
Third, Because the judgment of the court below has been so far executed and performed that there is no fund in that court which could be disposed of; and asking,
Fourth, That if this court assumes jurisdiction, then judgment below should be affirmed. ,
I. Writs of error are writs of right at common law and by statute, but they are issuable “subject to the regulations prescribed by law.” [R. S. 1909, sec. 2054.] Among other regulations prescribed for the issuance of these writs, the statute permits it to be sued out within one year after the judgment suit to be reviewed. [R. S. 1909, sec. 2056.]
The statute, however, in reference to the parties entitled to the writ, provides, that they “shall all join in such suit . . . and if any are omitted, the writ shall be quashed on motion of the defendant in error,” made before the submission of the cause and supported by the affidavit. [R. S. 1909, sec. 2058.]
As to the fact of non-joinder of proper parties, the statute provides that “if it be established or admitted,” then the plaintiff in error may answer, showing that “persons not joined” are incapable mentally
The subsequent sections of the statute give the party prosecuting the writ a further answer to the fact of non-joinder when “established or admitted,” by permitting him to show that the persons not joined refused to join, and by pointing out a statutory method for him to bring them into court; and if they fail to appear, that they' shall “be forever precluded from bringing another writ of error on the'same judgment.” [R. S. 1909, secs. 2061-2-3-4.]
This last clause in the statute shows the wisdom of its requirement, that all parties entitled to sue out writs of error directed at one judgment, shall be .joined when the writ is obtained; for, otherwise, a separate suit might be brought by each of the persons entitled to the writ, to the delay and vexation of the plaintiff in obtaining the benefit of his judgment and to the unnecessary increase of litigation.
These evils constitute the basis of the general law Avhich prohibits the issuance of writs of error except upon the joinder of all persons entitled. [7 Ency. Pl. & Pr., p. 860.]
In the present case the petition filed by the plaintiff in error Avith the clerk of this court for the obtention of the writ of error awarded herein, shows on its face a full and specific statement 'of the names of about twenty-one other persons who were co-defendants to the judgment rendered in the trial court. The transcript subsequently filed in obedience to the writ by the clerk of the trial court discloses the same number and same names as co-defendants of plaintiff in error in the judgment below. It is evident from this petition and the subsequent transcript of the record below, that it was both “admitted” by plaintiff in error when he obtained this writ and “established” by the transcript subsequently filed, that he was only one of about twenty-one defendants in the judgment in the
. In the case at bar defendant’s brief attacks the jurisdiction of this writ of error by alleging that the pecuniary interest of seventeen co-defendants of plaintiff in error would be directly affected by the decision of this court, and that none of these persons “have been served with a notice of any kind of proceeding,” and that they are not before this court. This contention embodies a full statement of all the elements of a formal motion to dismiss this case, and the fact that it is set forth in the brief filed herein instead of being
In consonance with this ruling, we hold that the objections to the jurisdiction of this court contained in the brief filed for the defendant in error in this case, are equivalent in all respects to a formal motion to dismiss the writ of error for non-joinder of parties; that the brief having been filed before the submission
II. There is another reason why the writ of error in this case should be quashed. The plaintiff in error filed in the lower court a motion to set aside that portion of the judgment of the lower court. which charged the money coming to him as one of the four heirs of John P. Moseley with the interest on an excess of advancement to his father from 1889 up to the time of the rendition of judgment. The only ground which he alleged in said motion was, that the judgment in question had been rendered upon an amended petition filed in the case; that while he had been served with process and copy of the original petition and had defaulted therein, under the statute applicable to suits in partition, as to other civil actions, no judgment could be rendered for a larger or greater sum, in such cases, than was claimed in the original petition. [R. S. 1909, sec. 2100.] He alleged further in his motion that the allowance of this larger judgment was an irregularity apparent on the face of the proceedings; and, therefore, one which it was permissible to set up under the statute (Sec. 2121, R. S. 1909) providing three years within which a motion to set aside a judgment might be filed.
The record proper consists of the process and return, the pleadings, the verdict and judgment in civil eases.
If the point insisted upon by plaintiff in error is available to him, it should be equally so in the circuit court, for his motion for relief under the' statute was filed within the statutory limit. A writ of error will
This has been expressly ruled in the case of Showles v. Freeman, 81 Mo. 540. Said the court in that case, l. c. 543, after quoting the statute: “It has long been the recognized practice of this court that irregular judgments may be set aside on motion filed any time within three years after the term at which such judgment may have been rendered. [Citing cases.] Such irregularity as may be reached by motion is defined to be ‘ the want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due .and orderly conducting of a suit, or doing it in an unseasonable .time or improper manner.’ [Tidd’s Prac. 512, 513.]”
That cáse is exactly in point in principle with the matter under consideration. If the plaintiff in error is entitled to any relief, it is because of the fact that the judgment was rendered on an amended petition for a larger sum than was claimed in the original petition to which he had suffered a default. If his contention in that respect can be maintained, there is no reason why he should not have redress by the timely proceeding begun by him in less than three years after the judgment was rendered in.the trial court.
It is clearly within the jurisdiction of the trial court on a proceeding pending therein to make a proper ruling on that subject. For that reason the plaintiff in error is not entitled, even if he had joined the proper parties, to maintain the writ of error sued out in this court.
The result is that the writ of error awarded in this case is quashed; and the proceeding herein dismissed.
— The foregoing report of the commissioners is hereby adopted as the opinion of the court.