City of Caruthersville v. Cantrell

• Decision Date: 16 May 1950
• Docket Number: No. 27741,27741
• Citation: 230 S.W.2d 160
• Parties: CITY OF CARUTHERSVILLE v. CANTRELL et al.
• Court: Missouri Court of Appeals

Page 160

230 S.W.2d 160

CITY OF CARUTHERSVILLE v. CANTRELL et al.

No. 27741.

St. Louis Court of Appeals, Missouri.

May 16, 1950.

Rehearing Denied June 13, 1950.

Von Mayes, Caruthersville, Fred L. Henley, Caruthersville, Jack O. Knehans, Cape Girardeau, and Rush H. Limbaugh, Cape Girardeau, for appellants.

Ward & Reeves, Caruthersville, for respondent.

BENNICK, Commissioner.

This is an action in ejectment which was brought by plaintiff, City of Caruthersville, to recover the possession of a certain strip of land alleged to be a part of a public alley in said city, and further alleged to be unlawfully withheld by defendants, W. L. Cantrell and Samuel Castleberry, who own and operate a hardware store in said city known as Traders Mercantile Company.

The strip of land in question is 8 feet in width and 48 feet in length, and lies immediately to the rear of the store building in which defendants conduct their hardware business.

The petition was in the conventional form for an action of this character.

The answer set up that title was in defendants by reason of adverse possession for more than 10 years; that defendants were the owners of the fee simple title to the land; that the land was private property, was no part of a public alley, and had never been dedicated to public use; that defendants and those under whom they claimed had at all times paid city, county, and state taxes on the land; that plaintiff city had theretofore granted defendants a permit to construct improvements on the land; that a part of the land described in the petition had been occupied by a building and used for private purposes for more than 20 years; and that plaintiff city had never expended any public money or any labor upon such strip of land, and had no right, title, or interest entitling it to possession of the same.

Defendants sought no affirmative relief, but merely asked that plaintiff's petition be dismissed.

Originating in the Circuit Court of Pemiscot County, the case, on defendants' application, was transferred to the Cape Girardeau Court of Common Pleas on change of venue.

A jury being waived, the case was tried to the court alone, and at the conclusion of the evidence the court rendered judgment in favor of plaintiff and against defendants.

Specifically the court found that the strip of land in question was a part of a public alley in which plaintiff and the public had an easement, and to the possession of which plaintiff was entitled for public use as an alley; that the land had been acquired as an alley by common-law dedication and prescription, and had been adversely used by the public for more than 10 years prior to the time when defendants took possession of the same; and that an easement and right of possession had vested in plaintiff for use of the land as a public alley, which easement had been accepted by plaintiff and the public.

Disallowing each and every one of the pleaded defenses, the court adjudged that plaintiff recover possession of the strip of land from defendants for use as a public alley, and further ordered that execution issue to restore to plaintiff the possession of the land.

Unavailingly moving for a new trial, defendants gave notice of appeal, and by subsequent steps have caused the case to be transferred to this court for our review.

The present action in ejectment was instituted on October 27, 1947, and the change of venue was granted on April 14, 1948. Seven months after the institution of this action, or, to be exact, on May 24, 1948, Cantrell and Castleberry, the defendants herein, instituted a suit to quiet title in the Circuit Court of Pemiscot County, naming as defendants the City of Caruthersville and the members of the city council. The quiet title suit involved the same property as is involved in this ejectment suit, and the prayer was that the court try and determine the estate, title, and interest of the parties respectively in and to the land in question, and adjudge that title was vested in Cantrell and Castleberry and that the city had no title or interest therein.

Thereafter the defendants in the quiet title suit (the City of Caruthersville and the members of the city council) filed their motion to abate such suit upon the ground that Cantrell and Castleberry could not be permitted to prosecute an independent quiet title suit during the pendency of the ejectment suit, but were required, under the provisions of the new civil code, Mo.R.S.A. Sec. 847.1 et seq., to assert the matters pleaded in their quiet title suit as a counterclaim in the ejectment suit.

Acting on the motion, the court dismissed the petition and abated the cause, whereupon Cantrell and Castleberry appealed to the Supreme Court, where appellate jurisdiction lay inasmuch as the quiet title suit involved title to real estate.

The Supreme Court pointed out in its decision that under the former practice the defendant in an action in ejectment was permitted, if he so elected, to state his title by way of defense to the plaintiff's claim for possession and at the same time ask the affirmative relief of a judgment or decree determining title. However it was in no sense mandatory that the defendant do so, and unless an equitable defense was interposed, the judgment rendered in the action in ejectment was inconclusive and constituted no bar to the subsequent prosecution of another suit between the same parties for the recovery of the same land.

The Supreme Court then went on to point out that the situation had been changed by virtue of Section 73 of the new code, Laws Mo.1943, sec. 73, p. 377, Mo.R.S.A. Sec. 847.73, which provides that a pleading shall state as a counterclaim any claim, not the subject of the pending action, which the pleader has against the opposing party at the time of filing his pleading, if such claim arises out of the transaction that is the subject matter of the opposing party's claim. In other words, Section 73 has abolished the former inconclusive effect of the judgment in an action in ejectment, so that henceforth a defendant who desires to seek the affirmative relief of a court in determining the question of title in respect to the land involved in the action in ejectment must mandatorily do so by way of a counterclaim interposed in such action or else be afterwards precluded from maintaining a suit to quiet title. It was held, however, that the effect of the decision was to be merely prospective, and that even though the action of the court in abating the quiet title suit was atcually correct, the judgment, in justice to the parties, was none the less to be reversed and the cause remanded. Cantrell v. City of Caruthersville, Mo.Sup., 221 S.W.2d 471.

On July 1, 1948, seven days before the Circuit Court of Pemiscot County entered its order abating the quiet title suit, defendants Cantrell and Castleberry filed their motion to stay further proceedings in the instant ejectment suit until the determination of the quiet title suit, which, in its broader scope, embraced the question of any right, title, or interest which plaintiff might have in the land in controversy. The Court of Common Pleas overruled such motion, and its action in such respect is now assigned as error.

Pointing out that inasmuch as the Supreme Court remanded the quiet title suit to be retried under the former practice, the judgment in the instant ejectment suit is not conclusive but still leaves the question of right of possession open to be finally adjudicated in the quiet title suit, defendants argue that irrespective of the fact that the ejectment suit was first instituted, the court should none the less have stayed its prosecution until the outcome of the quiet title suit could be determined.

There seems to be no doubt of the general rule that a court, in its discretion, may stay further proceedings in a given case upon the ground of the pendency of another action embracing the same issues, and this even though the action stayed was first instituted, where the second action will dispose of the entire controversy between the parties and the first will not. State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25.

Plaintiff does not concede that such general rule should apply as between an action in ejectment and a subsequently instituted quiet title suit. But even if we assume that the court, if its discretion had so dictated, might have stayed the prosecution of the action in ejectment until the outcome of the quiet title suit could be determined, it does not follow that it abused its discretion in refusing to do so. Certainly the Supreme Court did not indicate in its decision that the action in ejectment should be stayed, but only held that in justice to the parties, and for the purposes of this litigation, the judgment rendered in the ejectment suit should not be taken as conclusive. Plaintiff had the right to bring its statutory action in ejectment, and when defendants neglected to assert their quiet title claim as a permissive counterclaim in the ejectment...