Murphy v. De France
| Decision Date | 22 November 1886 |
| Parties | NANCY MURPHY, Plaintiff in Error, v. JAMES M. DEFRANCE ET AL., Defendants in Error. |
| Court | Kansas Court of Appeals |
APPEAL from Adair Circuit Court HON. ANDREW ELLISON, Judge.
Judgment rendered on " supplemental answer" reversed. Judgment originally entered affirmed; and all costs, including costs of appeal adjudged against the defendants.
Statement of case by the court.
The petition in this case alleged that the plaintiff was in possession, as owner in fee-simple, of sixteen acres of land described in the petition to which the defendants made some claim, and asked that the defendants be summoned to show cause why they should not bring an action to try their title. The preliminary order was issued, and the defendants filed their answer, in which they denied the allegations of the petition except that they claimed title to the said land.
A trial was had, with a jury, of the issue thus made. The court instructed the jury that the only issue before them was as to the possession by the plaintiff of the land described in the petition; the court refused, though asked by the defendants so to do, to instruct the jury to find the character of the plaintiff's possession, whether said possession was that of a doweress or owner. The jury returned a verdict finding that the plaintiff had possession of five and one-half acres of the said land, and had not possession of the balance of it. The court rendered judgment, as is shown by the abstract of the record filed by the defendants, requiring the defendants to bring suit to try their title to the said five and one-half acres of the land.
The verdict was returned and the judgment was rendered on the fourteenth day of April, 1885. On the twenty first day of April, 1885, the defendants filed a motion to quash the verdict of the jury, which motion the court overruled. On the last mentioned day the court permitted the defendants against the plaintiff's objections, to file a supplemental answer. The supplemental answer alleged that the plaintiff held possession of the five and one-half acres of land as her dower, and that the defendants owned the remainder, which interest only did they claim. The said answer also pleaded a former judgment of the circuit court setting apart the five and one-half acres of land as the plaintiff's dower, and decreeing the title to the balance of the land to be in the defendants, and ordering that the defendants be placed in the possession of said balance of the land, as res adjudicata. The said answer further alleged that the defendants were, and, ever since the former judgment aforesaid, had been in possession of the land except the said five and one-half acres.
The objections made by the plaintiff to the filing of the supplemental answer were as follows:
" 1. Out of time; can't be done after verdict.
2. It does not attempt to conform its allegations to the proofs in the case, and sets up a special and different defence from the general denial.
3. Because plaintiff is entitled to judgment on the supplemental answer as to the five and one-half acres the jury found her in possession of.
4. Because the application to file answer is not made by motion."
It does not appear that the court set aside the judgment originally rendered. But upon the filing of the supplemental answer and upon the same day the court rendered a new judgment by which it was adjudged that the plaintiff's petition be dismissed and that the plaintiff recover from the defendants the costs expended by her.
The defendants objected to so much of the latter judgment as adjudged the costs against them, and filed their motion in arrest making such objection.
The plaintiff in due time filed her motion in arrest, which set up the following grounds in support thereof:
" 1. On record it is erroneous.
2. Not responsive to the pleadings.
3. The court erred in permitting defendants to file supplemental answer after verdict.
4. Because it is not a judgment on the verdict in the cause.
5. Because supplemental answer cannot be filed after verdict to change the issues in the cause."
Both parties have brought the case here on cross appeals.
O. D JONES, for the plaintiff in error, who is also appellant.
I. There is no law in this state to warrant the filing of a " supplemental answer" after submission, trial and verdict, upon the suggestion of the court or otherwise. The case is not one to try title, and cannot be in this action.
II. The petition in this case is not a bill, and this is not the time to settle the title. It is only a proceeding preliminary to such a suit. Ruthford v. Ullman, 42 Mo. 216. Plaintiff being in possession and claiming the fee can compel one who claims the fee adverse to her to bring suit to try his title. Benoist v. Murrin, 47 Mo. 537.
III. Motion for new trial must be filed within four days after trial, or appeal will not lie. Richmond v. Pogue, 36 Mo. 313; Bishop v. Ranson, 39 Mo. 416; Moran v. January, 52 Mo. 523. This ruling was never changed.
IV. Defendants appeared, did not disclaim title, " to show cause why they should not be required to bring action," denied that plaintiff was in possession of any of the land. They went to trial on that issue and lost. The only thing left for the court to do, under the statute, was " to make such judgment or order respecting the bringing and prosecution of an action as may seem equitable and just."
JAMES M. DEFRANCE, for the defendants in error, also appellants.
I. Any evidence that went to prove that at the time the suit was brought no cause of action existed, is competent under a general denial; and the supplemental answer was unnecessary, and was not new matter, because the proof of the dower interest of the plaintiff had already been given in the case, and the court was possessed of it.
II. A party can't compel another to litigate his claim to a future interest. Webb v. Donaldson, 60 Mo. 394.
III. Any proof may be made, under a general denial, that goes to show plaintiff has no cause of action. M'f'g Co. v. Tinsley, 75 Mo. 458; Young v. Glasscock, 79 Mo. 577.
IV. To show plaintiff's possession as doweress (it having been p...
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