Brann v. Pool

*311 GRAVES, J. Action to declare a resulting trust, as distinguished from an express trust. There is no writing indicating a trust. The plaintiff claims interest to the extent of one-half of the lands involved. In 1908 some eight parties, of whom the plaintiff and Joel Eiwing (now deceased) were two of such eight parties, bought some land. They first bought with the view of making a “fish pond,” but afterward abandoned that idea, and added some additional lands and made a farm thereof. The whole purchase price was borrowed from one Thomas Evans, and the eight signed a note for $2353.72, which was signed by all eight of the parties. By consent of the eight the land was conveyed to one J. C. Kinney, one of their number. Afterward J. C. Kinney conveyed his paper title to Joel Ewing. There seems to be but little controversy as to the status of the first understanding. There is much controversy as to the conveyance to Ewing. Those who claim under Ewing say that Ewing took the conveyance from Kinney on the theory that he was to pay off the indebtedness to Evans (which covered the whole purchase price) and was to have the land as his own. That such was done by consent of all parties. Plaintiff claims that he was to be a full participant in this deal, and was to have a half interest. At this point we have the conflict. Those claiming under Ewing claim that he paid the note to Evans, and by the Kinney deed became owner in fee, and took possession as such, and so remained in possession under claim of ownership until his death. The widow of Ewing and some minors filed answers. The widow disclaimed knowledge of the *312 exact rights of plaintiff, and asked tlie court to determine them. The minors denied plaintiff’s claim. One of these was represented by a guardian ad litem, who filed the usual answer. Upon this hangs a further point. The case is here upon writ of error, rather than appeal. It is claimed that there was no'notice of our writ of error to the widow, or to this minor. The other side claims that as to the widow she had conveyed to plaintiff prior to the writ, and did not require notice. As to the minor, represented by a guardian ad litem, there is naught said. This will suffice to state the case. The motion to dismiss the writ of error is with the case. Upon trial, nisi, the court dismissed plaintiff’s petition, and entered judgment for defendants. From such judgment lies this appeal. I. There is no formal motion to dismiss this writ of error for failure to serve notice on Nancy Alice Roth-rock, a minor defendant in error. Tucked away in the brief, however, we find the following under “Points and Authorities”: “A writ of error is not a continuance of the original action, but a new action, and notice of the suing out of the writ must be served on all of the adverse parties or their attorney of record. Fidelity Trust Co. v. Mexico, S. F. & P. Traction Co., 270 Mo. 487; Sec. 1502, R. S. 1919.” What defendants in error say as to service of notice, supra, is true. All parties made defendants in error should be served with notice, but the statute cited, supra, makes service upon the attorney of record, good service. Running through the record we find that the court appointed E;. Schofield, as guardian ad litem for the minor, Nancy Alice Rothrock. He filed the usual an.swer. Notice of the writ was prepared and H. Y. Smoot, attorney of record for other defendants in error, except Mrs. Owen, signed a waiver of service, signed his name, ‘ ‘TI. Y. Smoot, attorney for defendants. ” It is also made to appear that Mrs. Ewing had (before the suing out *313 of the writ) conveyed all her interest to the plaintiff, and therefore had no interest as a defendant, and of course not a necessary party as a defendant in error. Mr. Smoot signed waiver of service for all defendants. His right to so sign will he presumed, absent a showing to the contrary. The guardian ad litem could employ him as counsel for the minor, and in such capacity service upon him, as attorney of record, would under the statute (R. S. 1919, sec. 1502) be.good. Note the service must be upon an “attorney of record.” So, although the guardian ad litem might have employed Smoot to represent both him and his minor ward, yet the record before us does not so show. The record shows that Helen Ewing answered in person. That the minor, Nancy Alice Rothrock, by her guardian ad litem, thus answered: “Now comes E. Schofield, attorney at law, who having been heretofore appointed guardian ad litem for Nancy Alice Rothrock, a minor, and for answer says that he has no knowledge or information sufficient to form a belief as to the .rights of the parties to this suit and asks¡ the court to require strict proof of the allegation of plaintiff’s petition. “E. Sohopield.” The record does not show who signed (as counsel) for the other defendants, and their curator, in one answer. .We find blanks in each instance. Thus as to defendant, ¡Lena Pool, the answer closes thus: “-, Attorney for Defendant, Lena Pool.” All other answers are in similar form. No name of the attorney appears in the printed record. Under these facts the presumption of Smoot’s right to sign as an attorney of record for the guardian ad litem, or his minor ward, is overcome by the record facts. The record fails to show him to be an attorney of record for either the minor or her guardian ad litem. Neither she nor her guardian ad litem are before this court. Even the filing of a brief on the merits, along with one on a motion to dismiss, *314 does not amount to a waiver. [Kenner v. Doe Run Lead Co., 141 Mo. 248; Guy v. Mayes, 141 Mo. l. c. 443.] We are dealing with, a minor, and the rights of a minor, and should strictly compel a compliance with the law. The suggestion, or motion, because it amounts to a motion to dismiss, should be sustained, and the writ of error dismissed, and it is so ordered. This is the only step that can be taken. [Vide cases, supra, and Garth v. Motter, 248 Mo. 477.] II. We are fully reconciled to this disposition of the case, because a casual glance at the record has not impressed us with the idea of there being error in the trial nisi. Writ of error dismissed, for the reasons assigned, supra. All concur.