Chaput v. Bock

• Decision Date: 29 November 1909
• Citation: 123 S.W. 16
• Parties: CHAPUT et al. v. BOCK et al.
• Court: Missouri Supreme Court

123 S.W. 16

CHAPUT et al. v. BOCK et al.

Supreme Court of Missouri.

November 29, 1909.

1. ACTION (§ 50) — PLEADING (§ 343) — MISJOINDER OF CAUSES OF ACTION AND OF PARTIES — JUDGMENT ON PLEADINGS.

Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), provides that any person claiming any title, estate, or interest in real property may sue any other person making a similar claim. Section 651 requires suits thereunder to conform to the Code of Civil Procedure, which provides (Rev. St. 1899, § 602) that, if a petition does not show on its face a misjoinder of causes of action or of parties, objection may be taken by answer. In an action under section 650 against numerous defendants, the petition did not disclose the title or right by which plaintiffs claimed, and did not show such defects on its face; but each defendant, claiming a separate and distinct parcel in the tract described in the petition, answered that he claimed the particular lot specifically described by him, and that he owned this in severalty, and that none of the others claimed any interest therein. The reply denied each and every allegation of new matter except the averment to the effect that each defendant claimed to be the owner in fee of the separate parcel embraced in the large tract, title to which was in question, but denied that the several defendants owned the several tracts or parcels claimed by them. Held, that the petition was multifarious, and when plaintiffs' counsel admitted on the trial that each defendant claimed his lot or tract in severalty, and made no claim to any other part of the tract described in the petition, the court properly sustained a motion for judgment on the pleadings and plaintiffs' admissions.

2. PLEADING (§ 238) — AMENDMENT OF PETITION — REFUSAL OF PERMISSION.

The court did not err in refusing permission to amend the petition on the trial when plaintiffs did not indicate the amendment they desired to make, and demanded 30 days to determine what they would do.

3. PLEADING (§ 245) — AMENDMENT OF PETITION — TIME FOR APPLICATION.

An application to amend the petition comes too late after a judgment of dismissal has been entered.

In Banc. Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by George Chaput and others against Arminius F. Bock and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

C. F. Schneider, for appellants. Jno. S. Leahy, Minor Meriwether, Schnurmacher & Rassieur, and H. A. Loevy, for respondents.

GANTT, J.

This is an action under section 650, Rev. St. Mo. 1899 (Ann. St. 1906, p. 667), to determine the title to a large tract of land in the city of St. Louis, described in the petition as all of United States survey No. 1,583, as the same is recorded in survey record No. 4, at page 45, in the office of the recorder of deeds of the city of St. Louis, state of Missouri, being a tract of land 385 feet wide and about 7,800 feet long, fronting on Finney avenue and running from a point about 400 feet east of Grand avenue westwardly. The action was brought against 498 defendants, all of whom, it is alleged, claim title adverse to the interest of the plaintiffs therein. Each of the 498 defendants filed a separate answer, pleading, in substance: (1) A general denial. (2) That each defendant claims only the particular lot by him specifically described; that he owns this lot in severalty, and that none of the other defendants claim any interest therein; wherefore it is pleaded that plaintiffs cannot maintain this joint action. (3) That the cause of action, created by section 650, accrued more than 10 years prior to the institution of the suit, and that the same is barred. (4) That each defendant has been in adverse possession of his particular lot for more than 10 years and has acquired title to the same by adverse possession. (5) Defendants also pleaded the 30-year statute of limitation. Plaintiffs filed one reply to all the answers filed by defendants. In this reply plaintiffs "deny each and every allegation of new matter in said several answers contained, except, however, the averment in said several answers contained, to the effect that each of said several defendants claims `to be the owner in fee of the separate parcel or lot of ground or land embraced in the United States survey No. 1,583,' or words to that effect; but plaintiffs deny that said several defendants own such several tracts or parcels claimed by them." On June 15, 1908, the case came on for trial. At the outset, counsel for the plaintiffs, to facilitate a decision upon the matter pleaded in abatement, admitted broadly, if it was not already admitted by the reply, that each defendant claims in severalty the particular lot occupied by him, and makes no claim to any other part of the tract. Thereupon the defendants moved for judgment upon the pleadings and admissions made by plaintiffs' counsel. The court sustained the defendants' motion and entered an order dismissing plaintiffs' petition, without prejudice. After the court announced its decision, plaintiff asked leave to amend, but, when asked what amendment he wished to make, stated he was unable to say at that time. On the following day the court made the order dismissing the petition without prejudice. Thereupon counsel for plaintiffs asked leave to amend within 30 days. Defendants then objected to any amendment because the order dismissing the petition had already been made and the application came too late. This objection was sustained, and plaintiffs excepted to the ruling. Thereupon plaintiffs perfected their appeal to this court.

The question presented by this appeal is: Did the circuit court correctly rule that the petition was multifarious? It is manifest from the statement that each of the 498 defendants, each claiming a separate and distinct parcel in the tract described in the petition, may have a separate and distinct and different defense from any other defendant. Conceding, as plaintiffs did in the circuit court, that each defendant claimed in severalty the particular lot occupied by him and made no claim to any other part of the tract described in the petition, and the petition not disclosing the nature of the title or right by which the plaintiffs claim, it would seem that, if there ever was a case in which the charge of multifariousness could properly be made, it is this case. The plaintiffs seek to justify upon the language of the statute itself, which provides: "Any person claiming any title, estate or interest in real property * * * may institute an action against any other person or persons claiming to have any title, estate or interest in such property." Section 650, Rev. St. 1899. But section 651 must be read in connection with that section, and it provides: "The institution, prosecution, trial and determination of suits under this act, shall conform in all respects to the provisions of the `Code of Civil Procedure' now existing and be in force in this state concerning actions affecting real estate and judgments rendered in such suits, shall have the force and effect as therein provided." And under this Code, if a petition on its face shows a misjoinder of causes of action or of parties it is demurrable; but, if these defects do not appear upon the face of the petition, then the objection may be taken by answer. Section 602, Rev. St. 1899.

In this case, as it did not appear upon the face of the petition that there was a misjoinder of causes of action and parties defendant, the defendants took advantage thereof by their plea in abatement. While this court has been disposed to give a liberal construction to section 650, it has not countenanced a defiance of all the rules of good pleading in its endeavor to uphold the statute. On the contrary, the last utterance of this court on this particular point clearly condemns the practice resorted to in this case. In Gardner v. Robertson, 208 Mo. 605, 106 S. W. 645, the action was under section 650, and this court said: "The petition is an omnibus pleading and on its face discloses a bundle of vices, viz., a misjoinder of plaintiffs, a misjoinder of defendants...