City of Caruthersville v. Cantrell
| Decision Date | 03 July 1951 |
| Docket Number | No. 28278,28278 |
| Citation | 241 S.W.2d 790 |
| Parties | CITY OF CARUTHERSVILLE v. CANTRELL et al. |
| Court | Missouri Court of Appeals |
Von Mayes and Fred L. Henley, both of Caruthersville, for appellants.
Ward & Reeves, of Caruthersville, for respondent.
This is an appeal from the order of the Cape Girardeau Court of Common Pleas overruling a motion to stay execution upon a judgment.
The case in which the judgment was rendered was an action in ejectment which was brought by the City of Caruthersville to recover possession of a certain strip of land alleged to be part of a public alley in said city but unlawfully withheld by defendants, W. L. Cantrell and Samuel Castleberry.
Originating in the Circuit Court of Pemiscot County, the case had been transferred on change of venue to the Cape Girardeau Court of Common Pleas.
Shortly after the change of venue was allowed, Cantrell and Castleberry instituted a suit to quiet title in the Circuit Court of Pemiscot County, naming as defendants the City of Caruthersville and the members of its city council. It is to be noted that the quiet title suit involved the same land as was involved in the action in ejectment, but with the positions of the respective parties reversed.
On motion of the City of Caruthersville and its codefendants the court entered an order dismissing and abating the quiet title suit upon the ground that Cantrell and Castleberry could not be permitted to prosecute such suit during the pendency of the action in ejectment, but were required, under the provisions of the new civil code, R.S.Mo.1949, sec. 509.420, to assert the matters pleaded in their quiet title suit as a counterclaim in the action in ejectment. On appeal the Supreme Court held that the order dismissing and abating the quiet title suit was actually correct, but in view of the change brought about by its decision announced that the effect of its decision should be prospective only, and that the particular order should be reversed and the cause remanded. Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471.
Meanwhile there was a trial of the action in ejectment which resulted in the entry of a judgment that plaintiff city recover possession of the strip of land from defendants for use as a public alley, and that execution issue to restore to plaintiff the possession of the land. On appeal to this court the judgment was affirmed. City of Caruthersville v. Cantrell, Mo.App., 230 S.W.2d 160.
While the appeal in the action in ejectment was still pending in this court, and notwithstanding the fact that the judgment had been rendered in its favor, the City of Caruthersville elected to set up the identical cause of action which it had asserted in the ejectment suit as a counterclaim in the quiet title suit which the Supreme Court had theretofore remanded for trial.
After this court's affirmance of the judgment in the action in ejectment, and after the mandate had gone down, defendants filed a motion to stay execution upon the ground that inasmuch as the city had reasserted its cause of action as a counterclaim in the quiet title suit, the ultimate decision in such cause would finally adjudicate and determine all the rights of the respective parties, and would bar and supersede the inconclusive judgment which had been rendered in the action in ejectment.
The court overruled the motion to stay...
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