ON MOTION FOR REHEARING. Upon the trial of this cause and in his brief and argument on appeal the theory of the plaintiff's right to relief was that by reason of extrinsic circumstances, circumstances not revealed upon the face of the record, the judgment in partition was void. He claimed and attempted to demonstrate by evidence that the fact was that Anspach's sole and only title or right in the land depended upon Anspach's having previously made an election in his wife's estate and that because Anspach had not in fact made the required statutory election he was not entitled to maintain the suit in partition. Gray v. Clement, supra. The opinion was written on the theory upon which it was tried and presented and we sought to demonstrate that the extrinsic circumstances upon which the plaintiff relied, were not sufficient for the purpose claimed and did not conclusively [498] show that the judgment was void. In substantiation of the judgment in partition and of the court's ruling in the present case we attempted to point out that upon the face of the record in the partition suit all jurisdictional prerequisites were present. Among other things we held that the petition stated a cause of action for partition.
Now, for the first time, on motion for rehearing the plaintiff urges that the petition upon which the partition suit was founded did not *Page 1137 state a cause of action and for that reason the trial court did not have jurisdiction to entertain the suit and enter the judgment. It is pointed out that our opinion erroneously states as a fact that Anspach in his petition alleged that he and Jones were "tenants in common," when the fact was that the allegation was contained in the original petition which was abandoned upon his filing an amended petition (State ex rel. v. Grimm,197 Mo. App. 566, 196 S.W. 1019) which did not contain the allegation that the parties were tenants in common. It is now asserted that because the amended petition did not in fact contain an allegation that the parties plaintiff and defendant were "tenants in common" or use language equivalent to an allegation of tenancy in common that the petition did not state a cause of action. The appellant says: "There is no such allegation in the amended petition and it is the very failure to make such allegation, or allege words equivalent thereto that constitute a fatal defect in such amended petition; absent such allegation the court had no jurisdiction and the judgment in the partition case was and is therefore void."
It is true, ordinarily, that the statement that the parties are "tenants in common" is an allegation commonly found in the conventional petition in partition. That is one of the estates subject to partition. Mo. R.S.A., Sec. 1709. But it is not one of the jurisdictional allegations required by the statutes to be set forth in the petition. The statute says: "The petition shall particularly describe the premises sought to be divided or sold, and shall set forth the names, rights and title of all parties interested therein, so far as the same can be stated . . ." Mo. R.S.A., Sec. 1713. Here the amended petition described the premises, set forth the names of the only parties who could have an interest in the land and as to their rights and titles said: "The said George W. Anspach, as the husband of said Bessie Anspach, deceased, is entitled to an undivided one-half in all the above described lands, and the defendant, John M. Jones, as the brother of said Bessie Anspach, is entitled to an undivided one-half interest in said above described real estate." It is argued that this allegation can only mean that Anspach's right to a one-half interest is dependent solely on his relationship to his wife, as that he must have made the statutory election, and it, therefore, shows on its face that he was not possessed of such a right as gave the court jurisdiction to partition the land.
In the first place, it should be again noted that there was not, and until now has never been an objection to the petition. Chapman v. Kullman, 191 Mo. l.c. 248, 89 S.W. l.c. 926. And, in partition, "All pleadings and proceedings under this article shall be had as in ordinary civil actions." Mo. R.S.A., Sec. 1717. In the second place, the quoted allegation is not comparable to the statement, tested by demurrer to the petition, that "Rosa Bates (the defendant) has a widow's dower interest in said land to the amount of one-third or $1,500.00, in and to said real estate; that the defendant has not made an election *Page 1138 as to her rights in said real estate." Carver v. Bates (Mo. App.), 185 S.W.2d 884. As we have previously pointed out, the allegation in this case that Anspach "is entitled to an undivided one-half in all the above described lands," tested as it is at this late day, is well within the allegations of Burton v. Helton (Mo.), 257 S.W. l.c. 129. "that plaintiff and defendant are each the owners of an undivided one-half interest," without further describing the interest or explaining how they came by it. Disregarding our erroneous statement, the petition states a cause of action in partition and the record does not necessarily reveal on its face that the facts were such that the trial court did not have jurisdiction to entertain the cause. In the absence of such a showing the presumption prevails that all jurisdictional requirements were present and found by the court. Sullinger v. West, supra; First National Bank Trust Co. v. Bowman, supra.
Accordingly, the appellant's motion for rehearing is overruled.