Bailey v. Williams

• Court: Missouri Supreme Court
• Writing for the Court: DALTON
• Citation: Bailey v. Williams, 326 S.W.2d 115 (Mo. 1959)
• Decision Date: 13 July 1959
• Docket Number: No. 47283,No. 1,47283,1
• Parties: Jerry A. BAILEY, Appellant, v. Albert WILLIAMS et al., Respondents

Page 115

326 S.W.2d 115

Jerry A. BAILEY, Appellant, v. Albert WILLIAMS et al., Respondents.

No. 47283.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Ewing & Beavers, J. Dorr Ewing, Joe Beavers and Gene Thompson, Maryville, for appellant.

Raymond Eckles, M. E. Ford and Ellis G. Cook, Maryville, for respondents.

DALTON, Judge.

This is an appeal from an order and judgment of the Circuit Court of Nodaway County sustaining defendants' motion to dismiss plaintiff's second amended petition, dismissing the suit, discharging the defendants 'without day' and taxing the costs against the plaintiff. Plaintiff has appealed.

Plaintiff's second amended petition contained two counts, the first will be referred to as a count in ejectment and the second as a count to quiet and determine title, both with respect to the same specifically described real estate in Nodaway County.

In order to better illustrate the position taken by respondents on this appeal we shall briefly review matters set forth in the transcript, whether such matters are properly a part of the record on this appeal or not.

On August 16, 1956, plaintiff Jerry A. Bailey instituted an action in the Circuit Court of Nodaway County against Adam Williams, Albert Williams, Luther Williams and Mary Jane Hartness to quiet and determine title to the described real estate. In the petition it was alleged that plaintiff was the owner of the described real estate, 'subject only to the life estate of the defendant, Adam Williams.' The petition contained allegations to the effect that the defendants 'have or claim an interest in the above described real estate, the exact nature of which claims and rights by said defendants being to the plaintiff unknown'; and that 'the claims of the defendants and each of them are adverse to the rights of the plaintiff and constitute a cloud on the title of the plaintiff of, in and to the above described real estate.' Other allegations were that defendants Adam Williams and Jennie Williams, husband and wife, had owned the real estate as tenants by entirety; and that on or about ___ day of April, 1956, they did 'make, execute and deliver their warranty deed, by terms of which they conveyed, subject to their respective life estates, all of the above described real estate to the plaintiff; and that said deed was on the date thereof placed in escrow in the Nodaway Valley Bank, Maryville, Missouri, with written directions that said bank hold the same during the life of the said Adam Williams and Jennie Williams and upon the death of the last survivor of them, deliver same to the plaintiff.'

It was further alleged that, thereafter, the said Jennie Williams died, leaving Adam Williams surviving; and 'that there now appears of record a certain deed, dated August 7, 1956, by the terms of which Adam Williams purported to convey to the defendants Albert Williams, Luther Williams and Mary Jane Hartness, subject to a reservation of a life estate in Adam Williams, which deed was filed for record on the 7th day of August, 1956.'

Plaintiff asked the court to try, ascertain, adjudge and decree the title and interest of the respective parties, plaintiff and defendants in and to the described real estate. Affirmative equitable relief was also requested, to wit, that the court cancel and annul the conveyance of the described real estate by said Adam Williams to the defendants Albert Williams Luther Williams and Mary Jane Hartness, dated August 7, 1956, and to adjudge and decree that said defendants have no right, title, interest or estate in and to the above described real estate.

Defendants moved to dismiss the petition on the ground that the petition failed to state a claim upon which relief could be granted against any of the defendants. The motion was overruled and defendants given twenty days in which to plead. An answer was, thereafter, timely filed by the defendants, wherein they admitted certain allegations of the petition, to wit, that defendants Adam Williams and Jennie Williams, his wife, had owned the described real estate as tenants by the entirety until the death of Jennie Williams and that Adam Williams did convey the said real estate to defendants Albert Williams, Luther Williams and Mary Jane Hartness, subject to a reservation of a life estate in the said Adam Williams. Other allegations of the petition were denied.

Thereafter, on October 30, 1957, plaintiff filed a first amended petition in a single count purporting to state a cause of action in ejectment against defendants Albert Williams, Luther Williams and Mary Jane Hartness. Adam Williams was not mentioned therein. The petition described the same real estate, alleged that plaintiff was the owner and entitled to possession on October 19, 1957, alleged the amount of damages for wrongfully withholding possession after demand for possession in the sum of $500 and further alleged the rental value of the real estate to be $2,000 per year. Plaintiff prayed judgment for recovery of possession of the described land and damages for withholding possession and for rents and profits.

By an order timely entered, defendants were given time to plead and, thereafter, filed a motion to dismiss plaintiff's first amended petition. On March 18, 1958, defendants' motion to dismiss was sustained and plaintiff given thirty days to plead. On April 16, 1958, by leave of court, plaintiff filed his second amended petition in two counts, as stated, the first count purporting to be a count in ejectment and the second a count to quiet and determine title. Defendants timely filed a motion to dismiss plaintiff's second amended petition. The motion to dismiss assigned some eight grounds for the dismissal of 'plaintiff's suit.' The order and judgment of the circuit court (sustaining the motion to dismiss and entering judgment of dismissal) sustained all of 'the reasons set forth in said motion to dismiss' and further specified three particular grounds.

In the hearing before the court on this motion to dismiss, the defendants did not offer in evidence plaintiff's original petition or plaintiff's first amended petition, hence neither of these abandoned pleadings are a part of the record in the case, nor properly before the court on this appeal. Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597(3); Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811; Fulton v. City of Lockwood, Mo.Sup., 269 S.W.2d 1, 5.

Did the court err in sustaining defendants' motion to dismiss plaintiff's second amended petition and dismissing plaintiff's suit? From the abstract statements of law set out under points and authorities in appellant's brief, it is apparent that counsel has not recently read 42 V.A.M.S. Supreme Court Rule 1.08(a)(3) and (d), as amended December 15, 1955, nevertheless, we conclude that appellant intended to contend that the trial court erred in sustaining defendants' motion to dismiss plaintiff's second amended petition and in dismissing the plaintiff's suit. Appellant says that a cause of action in ejectment was stated in the first count of the second amended petition; and that a cause of action to quiet and determine title was stated in the second count.

As stated, the first count purports to state a cause of action in ejectment for the described real estate and it is almost identical in form to the first amended petition, except that no date in October, 1957 is alleged as the date when plaintiff became the owner and entitled to the possession of the described real estate. The count states a cause of action in ejectment in proper and approved form against the named defendants. See Sections 524.060 and 524.080 RSMo 1949, V.A.M.S.; Flournoy v. Sprague, Mo.Sup., 214 S.W. 183, 184; Fitzpatrick v. Garver, 253 Mo. 189, 161 S.W. 714.

In its order dismissing the second amended petition the trial court (referring to the first count) assigned, as one of the grounds for dismissal, the fact that said 'petition' alleged that the plaintiff was the owner and entitled to the possession of the land in controversy on the ___ day of October, 1957. The court said: 'As this suit was instituted on the 16th day of August, 1956, the said second amended petition states no cause of action on which plaintiff can recover.'

No doubt the trial court relied upon the rule as stated in Jegglin v. Orr, 224 Mo.App. 773, 29 S.W.2d 721, 724, as follows: 'The general rule is that a suit is prematurely brought if the petition is filed before the cause of action has accrued, and such a suit may not be maintained, even though the cause of action has accrued at the time of the trial. As a consequence it has been held that an amended petition may not set up any cause of action which had not accrued when the original petition was filed.' (Citing cases.) And see Lennox v. Vandalia Coal Co., 158 Mo. 473, 493-495, 59 S.W. 242; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376, 68 S.W. 1043, 1045; Herbig v. Herbig, Mo.App., 245 S.W.2d 455, 456(3, 4); Wocet v. Seacat, Mo.App., 212 S.W.2d 449, 453; Huffman v. Meriwether, Mo.App., 201 S.W.2d 469, 473(2); Lindsay v. Evans, Mo.App., 174 S.W.2d 390, 395(1, 2). And see Berssenbrugge v. Luce Mfg. Co., D.C., 30 F.Supp. 101; and Eveland v. Detroit Machine Tool Co., D.C., 18 F.2d 968, 969.

Respondents also insist that 'the second amended petition fails to state a cause of action that existed at the time of the commencement of the suit,' to wit, on August 16, 1956; that 'the record shows that the alleged cause of action on which plaintiff now seeks to recover accrued after the commencement of the suit'; and that recovery can only be had on a cause of action existing at the time the action was first instituted. Respondents also cite Weinwick v. Bender, 33 Mo. 80; Heard v. Ritchey, 112 Mo. 516, 20 S.W. 799; Finley v. Babb, 144 Mo. 403, 46 S.W. 165; and Payne v. School District, 87 Mo.App. 415, 419.

The rule upon which the trial court and counsel for respondents rely was based upon the well-established...