State v. Gibson

• Decision Date: 25 November 1904
• Citation: 184 Mo. 490,83 S.W. 472
• Parties: STATE ex rel. PRIDDY et al. v. GIBSON, Judge.
• Court: Missouri Supreme Court

83 S.W. 472

184 Mo. 490

STATE ex rel. PRIDDY et al. v. GIBSON, Judge.

Supreme Court of Missouri.

November 25, 1904.

BILL OF EXCEPTIONS — COMPELLING JUDGE TO SIGN — REMEDY — MANDAMUS.

1. Supreme Court Rule 7 (73 S. W. v), providing that in cases of equitable jurisdiction the whole evidence shall be embodied in the bill of exceptions, does not require the bill of exceptions to contain the evidence on the merits in an equity case, where the only question proposed to be raised is whether the court had jurisdiction.

2. Where appellant assails the validity of a decree on the ground of want of jurisdiction, appellee is not entitled to a review of the evidence to determine whether the decree is supported thereby.

3. Mandamus to compel a judge to sign a bill of exceptions containing an application for a change of venue, and the evidence and proceedings thereon, will be awarded, notwithstanding

the claim that there is no merit in the relator's claim of error; the relator being entitled to bring the matter before the Supreme Court in the regular way by bill of exceptions.

4. Rev. St. 1899, §§ 727-736, relating to bill of exceptions, and providing the procedure when the court refuses the filing of exceptions, being intended to provide a remedy in cases where the judge refuses to sign a bill on the ground that it is not true, affords no remedy where the trial judge refuses to sign a bill of exceptions containing matter raising the question of the court's jurisdiction to try the cause, because it does not contain the evidence on the merits, and mandamus to compel the signing of the bill is the appropriate remedy.

In Banc. Original proceeding in mandamus by the state, on the relation of G. W. Priddy and others, against James Gibson, judge, to compel respondent to sign a bill of exceptions. Peremptory writ awarded.

W. C. Forsee, H. H. McCluer, and S. P. Forsee, for relator. C. O. Tichenor, O. H. Dean, and Lathrop, Morrow, Fox & Moore, for respondent.

BRACE, P. J.

This is an original proceeding in mandamus to require the respondent, one of the judges of the Jackson county circuit court, presiding in division 1 of said court, to sign a bill of exceptions in the case of the relator against James Mackenzie, tried in said division of said court, and brought here by writ of error. The questions to be decided arise upon a motion for a peremptory writ on the ground that the return is insufficient. The material facts upon which the discussion turns may be briefly stated as follows:

On the 26th of June, 1903, there were pending in the said division of said court nine separate and distinct actions against several defendants, of which the case against the said Mackenzie was one, some of which theretofore had been transferred, over the protest of the plaintiffs therein, from the other divisions of said court, under the rules thereof, to said division, and in all of which the issues were substantially the same. The petitions contained two counts, one in ejectment in ordinary form, and the other an action under section 650, Rev. St. 1899, to determine and define the title, estate, and interest in certain lands in Jackson county between the several parties; and the answers contained cross-bills, the allegations and prayer of which were in substance as follows: "That the property involved in the action was a part of the 52-acre tract of land in Jackson county, Mo., which was owned by Thomas Jones at the time of his death in Jackson county, Mo., in 1843; that at the time of the death of the said Thomas Jones he left nine children, two of whom were Nancy Ann Jones, afterwards married to James Priddy, and Elizabeth Jones, afterwards married to W. P. Linville; that the said Thomas Jones died intestate, and the said Nancy Jones and Elizabeth Jones each inherited a one-ninth interest in said 52-acre tract, including the property in controversy in each case; that the said Nancy Ann Jones intermarried with James J. Priddy in the year 1849, and that Elizabeth Jones afterwards intermarried with one William P. Linville; that on the 5th day of May, 1853, the said Nancy Ann Priddy was over the age of 21 years, and she on that day, together with her husband, James J. Priddy, made, executed, and delivered a deed of the property in question to one Lott Coffman, thereby conveying the one-ninth interest in said property vested in the said Nancy Ann Priddy; that the said Elizabeth Jones, being then unmarried and of lawful age, did join in such conveyance, and did thereby convey to the said Lott Coffman all her one-ninth interest in and to the said property; that the said Elizabeth Jones reached the age of 21 a long time before her marriage to the said W. P. Linville, and during the said period in which she was single and unmarried, and over the age of 21 years, she did not at any time undertake to disaffirm or repudiate, or in any way question, the conveyance which she had made to Lott Coffman, although more than a reasonable time for that purpose had elapsed; that by virtue of the premises a good and sufficient title was conveyed to the said Lott Coffman of all the interest and estate of the said Nancy Priddy and her husband, James J. Priddy, and Elizabeth Jones; that the defendants in each of said actions acquired, through mesne conveyances, all the right, title, and interest so received by the said Lott Coffman; that he and those under whom he claimed acquired the interest of the other heirs of Thomas Jones long prior to 1869, and have since been the owners of the entire estate in and to the property mentioned in the petition in each of said causes; that at the time of the said conveyance in 1853 the value of the said 52 acres of land did not exceed the sum of $200, and that since that time the said real estate has increased in value to more than $505,000 and that improvements have been placed thereon exceeding in value the sum of $633,000; that the property owned by each defendant in said actions has greatly increased in value, and that each defendant has made valuable and lasting improvements thereon; that since the making of said deed in 1853 the said James J. Priddy and Nancy Ann Priddy, his wife, and Elizabeth Linville, during their lifetime, and the said William P. Linville and the relators, have for many years known that said property was increasing in value with great rapidity; that it was being improved by persons claiming to be the owners by deeds from the lawful owners thereof, including the said deed made in 1853 by James J. Priddy and Nancy Ann Priddy, his wife, and Elizabeth Jones; that they further knew that said property had ceased to be farm property, and had been taken into the city limits of Kansas City, Mo., and had been platted and subdivided, and sold to various owners, and extensive and valuable improvements placed thereon, and, with such knowledge, neither the said persons, nor their descendants or heirs, including the plaintiffs in said suits, made or asserted any claim to or in respect of said property until the filing of said suits; that the said plaintiffs in said actions and their predecessors in interest had been guilty of gross laches, and were estopped to assert any claim to said property; that it was further alleged in said cross-bills that the plaintiffs in said actions claimed and asserted a right or title to a two-ninths interest in said property owned by the defendants respectively, and based their claim upon the allegations that the said Nancy Ann Priddy and Elizabeth Jones were minors at the time of the execution of said deed in 1853, and that the same was, by reason thereof, voidable, and that they or their heirs had disaffirmed said deed and reinvested the title in them, and that such claims are without foundation in fact, and constitute a cloud upon the title of the defendants, respectively; that James J. Priddy and Nancy Priddy, his wife, during their lifetime, executed a power of attorney to one S. P. Forsee, authorizing him to sell certain property, including the property in controversy, and to sue and recover the same, and for other purposes; that said power of attorney was recorded and is now of record in the office of the recorder of deeds for Jackson county, Mo.; that the defendants were informed and believed that a similar power of attorney was executed by William P. Linville and Elizabeth Linville, his wife, and that by reason of the premises and the said powers of attorney a cloud has been cast upon the title of the said defendants respectively, to their said property." It was further averred that the defendants and each of them were at the time of the institution of said suits in the lawful possession of the property described in the petitions, respectively, and that the title thereto had emanated from the government of the United States more than 10 years prior thereto; that the defendants, respectively, and those under whom they claimed, had been in possession of said property for more than 31 consecutive years prior to the institution of said actions; that such possession had been exclusive, and that no other person or persons during said period had been in possession of said property, or had paid any taxes thereon, but that all of the taxes and assessments during said period of more than 31 years had been paid by the defendants, respectively, and those under whom they claimed; that such possession had been open, notorious, exclusive, and adverse, and under claim of ownership and color of title, and without notice or knowledge of plaintiff's claim until the institution of said actions; that the defendants in said cross-bills prayed for the order and decree of the court adjudging that the title to the property in controversy was in the defendants, respectively, free and clear of any claim on the part of the plaintiffs, and that the said deed made by James J. Priddy, Nancy Ann Priddy, and Elizabeth Jones in 1853, should be decreed to be the irrevocable deed of the said grantors, and that...