154 Mo. 28 | Mo. | 1900
This is an action in ejectment to recover lot 2 in block 3 in Meuse’s addition to the city of Washington in Eranklin county, Missouri. The petition is in the usual form, and the answer is a general denial. Judgment was for the defendant in the circuit court, and the plaintiffs appeal. There is no dispute about the facts. Bernard Westmeyer, who died intestate in the year 1854, is the
At the time of the death of the said Bernard he was residing on the premises with his family, which consisted of his wife Henrietta, and six minor children, all under the age of 14 years. By the law then in force, it was provided that, “Until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages and plantation thereto belonging, without being liable to pay -any rent for the same.” [1 R. S. 1855, p. 672, sec. 21.] On the 20th of August, 1856, the widow of said Bernard, as plaintiff, instituted the suit in partition, by petition and summons, against her six minor children, of whom Mary the oldest was then aged about 15 years. The service of the writ of summons as returned by the sheriff is as follows: “Served the within petition and writ on Mary Westmeyer, Henry Westmeyer, Margaret Westmeyer, William Westmeyer, Adolph Westmeyer and Louisa Westmeyer in Eránklin county, Mo., on the 21st of August, 1856, by reading the same to each of them, and also by delivering to Mary Westmeyer a certified copy of this petition.” By the law then in force the writ of summons in suits in partition was required to be served in like manner “as writs issued in ordinary civil actions” (2 R. S. 1855, p. 1112, sec. 8), and the personal service with which alone we have to do in this case, required in such actions was as follows: “First, by reading the writ to the defendant, and delivering to him a copy of the petition; or, second, by delivering to him a copy of the petition and writ;.......or, fourth, where there are several defendants, by delivering to the defendant who shall be first summoned a
(1) By the construction placed upon the statute in question in Lenox v. Clarke, 52 Mo. 115, in which the fourth clause of section 7, was pieced out with the first, in order to sustain the service, it might be held that Mary Westmeyer was legally served with process in the partition suit, but by no possible construction could it be held that the other defendants, including the plaintiffs in this case, to none of whom was delivered either a copy of the petition or of the writ, was legally served — and this does not seem to be disputed. In some jurisdictions the doctrine once obtained, that a court of 'general jurisdiction possessing plenary chancery powers, could by the appointment of a guardian ad lit'em, in a pending litigation, acquire jurisdiction of the person of an infant, and bind his estate by its decree, although the infant had not been served with process. And there are some early decisions in this State under the law as it existed prior to the adoption of
It is suggested by counsel for respondent in explanation of the manner in which the writ was served in the partition suit, that the service is in accordance with the statute of 1849, and that the enactment of 1855 was first published in the Re vised Statutes of that year, and that they may mot have been distributed, or the latter enactment brought to the attention of the attorneys or the court at the time the suit was commenced, and that this fact should be taken into consideration in determining the validity of the service, and on the authority of Thompson v. Railroad, 110 Mo. 147, and Leonard v. Sparks, 117 Mo. 103, it is contended that the service though irregular was not void. In answer to the suggestion it is only necessary to say that ignorance of the law excuses no one, and that such ignorance can furnish no excuse for depriving an infant of his property without due process of l'aw. And as to these cases, that
In the second case, the attack was also on the sufficiency of a notice in a condemnation proceeding. The owner was served only five days, before the day named for his appearance, and the law required at least six days. He was an adult sui juris, had been personally served in the manner required by law, was competent to waive service for the full length of time, and the court held that it was his duty if he desired to take advantage of the insufficiency of the period of notice, to have appeared to the proceeding and made his objections, and not having done so the jurisdiction of the court to render judgment against him, was not defeated.
The distinction between those cases and the ease in hand is obvious. Here the plaintiffs were infants of tender years, they were not served in the manner provided by law. They never had their day in court. They could neither acknowledge nor waive service of the process by which alone they could be subjected to the jurisdiction of the court, nor could they appear therein to protect their interests, and these eases furnish no authority for holding that the service on them in the partition suit, was merely irregular and not void. It follows from what has been said, that the judgment should have been for the plaintiffs, unless they are barred by the statute of limitations.
The judgment of the circuit court will be reversed, and the cause remanded with directions to enter judgment for plaintiffs in accordance with the views expressed in this opinion, and for nominal damages as agreed upon.