Cantrell v. City of Caruthersville

• Decision Date: 13 June 1949
• Docket Number: 41116
• Citation: 221 S.W.2d 471,359 Mo. 282
• Parties: W. L. Cantrell and Samuel Castleberry, Appellants, v. City of Caruthersville, a Municipal Corporation, and Gordon Wright, Wyman Dillman, Obye Coker, John Ahern, L. K. Van Ausdall, and Ott Monan, Members of the Council of said City, Respondents
• Court: Missouri Supreme Court

221 S.W.2d 471

359 Mo. 282

W. L. Cantrell and Samuel Castleberry, Appellants, v. City of Caruthersville, a Municipal Corporation, and Gordon Wright, Wyman Dillman, Obye Coker, John Ahern, L. K. Van Ausdall, and Ott Monan, Members of the Council of said City, Respondents

No. 41116

Supreme Court of Missouri

June 13, 1949

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Reversed and remanded.

SYLLABUS

In an action to quiet title the petition was dismissed and the cause abated on the ground that an ejectment action involving the same land was pending. Under the new Civil Code providing for mandatory counterclaims a judgment in an ejectment action is conclusive as to title, but the opinion is given prospective effect. Although the action of the trial court was correct, the cause is reversed and remanded in justice to appellants.

Von Mayes and Fred L. Henley for appellants.

(1) Respondents claim that appellants were required by Section 73, Session Laws 1943, page 377, to file as a counterclaim their action to quiet title in the ejectment suit, or be barred of such relief. The above-mentioned section deals exclusively with compulsory or mandatory counterclaims; that is, such as arise out of the transaction or occurrences which form the basis of the action of the plaintiff. In ejectment, while the land is the object of the litigation, the subject matter of the litigation is the right to the possession. 19 C.J., sec. 5, p. 1031; Real Estate Co. v. Investment Co., 335 Mo. 1237; Scott v. Shackelford, 125 S.W.2d 522. (2) But, assuming that the land is the subject matter in ejectment, the right to the possession does not arise out of the soil. And, assuming that the subject matter is the title in a suit to quiet title, such title claimed by plaintiff cannot possibly arise out of any transaction or occurrences which might form the basis of an action in ejectment brought by the defendant against the plaintiffs. A judgment in ejectment is not a bar to a suit to quiet title, but a judgment in a suit to quiet title is a bar to a judgment in ejectment without regard to the priority of the judgments. No affirmative relief is asked by defendants in the ejectment suit. See answer at Page 10 of transcript. Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042; Autenrieth v. Bartley, 176 S.W.2d 546; Stone v. Perkins, 217 Mo. 586; Northcutt v. McKibber, 159 S.W.2d 699.

Ward & Reeves for respondents.

(1) Under said Section 929, R.S. 1939, crossbills (which are included in the term, counterclaim) could be pleaded in an answer in ejectment suits, because they relate to the same subject matter (the same land) as plaintiffs' cause of action. Such counterclaim may take the form of a bill of peace, or a quiet title suit. Swope v. Weller, 119 Mo. 556; Hynds v. Hynds, 274 Mo. 123; Brundridge v. McQuown, 293 S.W. 133. (2) Under the old Code a counterclaim could be pleaded by defendant in quiet title suits, and a defendant could even have the land partitioned in the same action. Friel v. Alewel, 318 Mo. 1; Grimes v. Miller, 221 Mo. 636; Jones v. Jones, 30 S.W.2d 49, 325 Mo. 1037; Clark Real Estate Co. v. Old Trails Ins. Co., 76 S.W.2d 388, 335 Mo. 1237. (3) Sec. 917, R.S. 1939, permitted the uniting in the same petition of several causes of action, where they all arise out of "the same transaction or transactions connected with the same subject of action." Section 73 of the new Civil Code is in nearly identical language. Said section provides that the counterclaim must arise "out of the transaction or occurrences that is the subject matter of the opposing party's claim." Now what is the subject matter in an ejectment suit or a quiet title suit under said Section 917, and under old Section 929 (containing similar language as new Section 73), as construed by our courts? It is expressly held to be the land, whether the suit is in ejectment or one to quiet title. Insurance Co. v. Carson, 186 Mo.App. 221; Lane v. Dowd, 172 Mo. 167; Grimes v. Miller, 221 Mo. 636; Friel v. Alewel, 318 Mo. 1; Jones v. Jones, 325 Mo. 1037. (4) As stated in appellants' brief, before the enactment of the new Civil Code, it is true that one action of ejectment is no bar to another, and such actions, as this court has held, "may be maintained ad infinitum, so long as equitable defenses are not interposed and ruled on." Swope v. Weller, 119 Mo. 556; Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042. (5) One of the chief objectives of the new Civil Code was to prevent unnecessary repetitions and separate litigations as indicated in the last paragraph above, which were allowed under our old Code. Section 40 of the new Code now provides that a party shall (not may) in his pleading set forth affirmatively, among other things, "estoppel . . . statute of limitations, . . . and any other matter constituting an avoidance or affirmative defense." The appellants affirmatively pleaded estoppel and statute of limitations in their answer in the ejectment suit, but they now plead these same matters and other additional matters in an independent suit, filed seven months after the ejectment suit was filed, and all of which said matters insofar as they state any cause of action or ground for relief, must be pleaded in the ejectment suit, because they would constitute "an avoidance or affirmative defense" to that suit. If such matters so pleaded respecting this same property also state a cause of action or grounds for equitable relief against respondent City, then such matters are required by Section 73 of the new Code to be pleaded as a counterclaim in the ejectment suit. Supreme Court Rule 3.02 (a); Secs. 40, 73, New Code of Civil Procedure; State ex rel. v. Bland, 210 S.W.2d 31. (6) The proper recognized procedure is to file a motion to abate or dismiss the second suit when a prior suit is pending between the same parties, involving the same subject matter. Weisheyer v. Weisheyer, 14 S.W.2d 486; O'Malley v. Lamb, 113 S.W.2d 810, 342 Mo. 171; Mexico Refractories Co. v. Pignet's Estate, 161 S.W.2d 417.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

This is an action to try and determine title to a described parcel of land in the City of Caruthersville, and to enjoin defendants from interfering with plaintiffs' use of the land and to enjoin threatened condemnation of the land. On motion of defendants, the trial court dismissed the petition and abated the cause. Plaintiffs have appealed. Interesting questions relating to provisions of the Civil Code of Missouri (Laws of Missouri, 1943, p. 353 et seq., Mo. R.S.A. § 847.1 et seq.) are presented. This court has appellate jurisdiction on the ground the case involves "title to real estate." Section 3, Article V of the Constitution of Missouri, 1945; Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W. 2d 771. The judgment sought, if granted, would directly affect or operate upon title to real estate.

The grounds alleged in the motion to dismiss are that the subject matter of plaintiffs' action to determine title is the same subject matter of a cause between the same parties pending in the Court of Common Pleas of Cape Girardeau County on change of venue from Pemiscot County; that said pending action is in ejectment instituted by the defendants and against the plaintiffs in the instant action to recover possession of the identical parcel of land involved in the instant action; that the action pending in said Court of Common Pleas was filed October 27, 1947, and the instant action was filed May 24, 1948; that in the prior action the plaintiffs herein, as defendants in that action, were required "under the new civil code of procedure, to plead as a defense, counterclaim or cause of action in their answer in said prior suit the same matters pleaded in this action, and that the issues in the present suit are germane to and should be disposed of in said prior suit."

On the hearing of the motion to dismiss it was admitted that the prior action then pending in said Court of Common Pleas was an ordinary action in ejectment. Section 1534 R.S. 1939, Mo. R.S.A. § 1534. The petition states the described parcel of land is part of a public alley. The petition and answer in that case were offered in support of the motion. The land described in the petition includes the land involved in the present action. The answer to the petition in the ejectment action stated title by adverse possession for more than ten years, payment of taxes, permit from the city to make improvements on the land; and the answer further stated the land "is no part of a public alley and has never been dedicated by anyone for public purposes." But no affirmative relief was asked.

In their brief defendants-respondents say, "Appellants affirmatively pleaded estoppel and statute of limitations in their answer in the ejectment suit, but they now plead these same matters and other additional matters in an independent suit (instant action to try and determine title), filed seven months after the ejectment suit was filed." Plaintiffs-appellants in their petition in the instant action have also negatived that respondent City is "vested with the fee . . . or an easement." Defendants-respondents further say, "all of which said matters (pleaded in the petition filed in the instant action), insofar as they state any cause of action or ground for relief, must be pleaded in the ejectment suit, because they would constitute 'an avoidance or affirmative defense' to that suit." For such contention respondents rely on Section 40 of the Civil Code of Missouri, Laws of Missouri, 1943, p. 370, Mo. R.S.A § 847.40. Respondents also say, "If such matters so pleaded (in the instant action to determine title) respecting this same property also state a cause of action or grounds...