Collins v. Andriano

• Decision Date: 30 March 1915
• Docket Number: No. 17230.,17230.
• Citation: 175 S.W. 194,264 Mo. 475
• Parties: COLLINS v. ANDRIANO.
• Court: Missouri Supreme Court

175 S.W. 194

264 Mo. 475

COLLINS v. ANDRIANO.

No. 17230.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge.

Ejectment by Albert Collins against Max Andriano. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Plaintiff brought ejectment in the circuit court of Buchanan county and had judgment. Defendant appealed for that the record is erroneous. There is no bill of exceptions. The errors urged are alleged to be in the petition and in the verdict. The petition, omitting the prayer for judgment and formal parts, is as follows:

"Comes now the plaintiff, and for his cause of action states that he and his wife, Agnes Collins, are the owners by the entirety of lot 23 and the east 10 feet of lot 22, in block 3, Landis' addition to the city of St. Joseph, Buchanan county, Mo., and on and prior to the 12th day of March, 1911, plaintiff was entitled to and was enjoying the peaceable possession of said property; that afterwards, to wit, on or about the 13th day of March, 1911, the plaintiff then being so entitled to the possession of said property, the defendant entered into said premises and took possession of a strip off of the north 50 feet of the west 18 inches of same, to plaintiff's damage in the sum of $100, and unlawfully withholds from plaintiff the possession thereof."

The verdict, which is complained of, signature and formal parts omitted; reads thus: "We, the jury in the above-entitled cause, find for plaintiff for possession of the lands sued for, being that part of the east 10 feet of lot 22, block 3, Landis' addition, lying between the fence erected by Andriano and now standing running from the southwest corner of the house to the front of the yard and the west line of said 10 feet, as shown by the surveys of William H. Floyd, Jr., and George S. Van Natta."

The judgment followed the above verdict and was, as to the description therein; responsive thereto.

Vinton Pike, of St. Joseph, for appellant. William E. Stringfellow, of St. Joseph, for respondent.

FARIS, P. J. (after stating the facts as above).

1. It is contended: (1) That the petition does not state any cause of action; (2) that the verdict, being, as it is alleged, special, is insufficient; and (3) that it is so vague and uncertain as to be void. By a reference to the petition upon which the case was tried, it will be seen that the title to a strip off of two parcels of land, or off one parcel, which consists or is made up of two separate lots or tracts, is averred to be in plaintiff and his wife as tenants by the entirety; that is to say, all of "la 23 of block 3 and the east 10 feet of lot 22 of said block 3 in Landis' addition to the city of St. Joseph," and that defendant, as it is further averred, "took possession of a strip off of the north 50 feet of the west 18 inches of same." It may be inferred from the petition, but it is not alleged, and except by such inference it does not appear therefrom, that said la 23 and the east 10 feet of lot 22 are contiguous and together form one compact parcel. But it is just as easy to infer that the parcels are separate and distinct; in which case it is not possible to say to what the word "same" refers, or from which lot the "same" is to be taken, or the width of the strip which Is to be carved "off the north 50 feet of the west 18 inches." No difficulty was incurred, we apprehend, upon the trial in exactly and definitely locating the locus in quo, from which and the place at which, the carving off of the 18 inches in dispute was to be done, but defendant was entitled to have it located on the petition. If a demurrer had been filed, or if an objection ore tenus bad been made to any testimony for that the petition was insufficient as to the land's description, we think there could be no two views in such case as to the law, and that such demurrer, or objection ore tenus, would have lain. Livingston County v. Morris, 71 Mo. 603.

In passing, we may say that the original petition brought up to us by the respondent's additional abstract cannot avail respondent, for the reason that this petition was abandoned and the case tried upon the amended petition which we set out in our statement. An abandoned pleading is no longer a matter for the record proper; it becomes, when abandoned, but an evidentiary matter available ordinarily only to the adversary side as an admission...