Doerschuk v. Locke

• Decision Date: 10 June 1932
• Docket Number: No. 30065.,30065.
• Citation: 51 S.W.2d 62
• Parties: ALBERT N. DOERSCHUK, Appellant, v. JOHN L. LOCKE ET AL.
• Court: Missouri Supreme Court

51 S.W.2d 62

ALBERT N. DOERSCHUK, Appellant, v. JOHN L. LOCKE ET AL.

No. 30065.

Supreme Court of Missouri, Division 2.

June 10, 1932.^*

Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.

REVERSED AND REMANDED.

McCluer & Wilson and Omar E. Robinson for appellant.

(1) The court erred in sustaining the plea in abatement. Filing the so-called bill of peace, actually an answer, was an abandonment of the plea in abatement. 19 C.J. pp. 1119, 1120, sec. 128; McMahan v. Hubbard, 217 Mo. 644; R.S. 1919, sec. 1821. (2) The court erred in not overruling the plea in abatement. One action in ejectment is no bar to a second action, between the same parties involving the same property. Spencer v. O'Neill, 100 Mo. 58; Ekey v. Inge, 87 Mo. 496; Crowl v. Crowl, 195 Mo. 346; Speed v. Terminal Ry. Co., 163 Mo. 122; Llewellyn v. Llewellyn, 201 Mo. 303; St. Louis v. Schulenberg Lumber Co., 98 Mo. 613; Stone v. Perkins, 217 Mo. 586; Callahan v. Davis, 125 Mo. 27; Potter v. Adams, 143 Mo. 665. (3) The Judge of Division Number Six erred in making the order and rendering judgment after the application for change of venue was filed. Laws 1921, p. 204; State ex rel. v. Evans, 184 Mo. 642; In re Drainage Dist. v. Richardson, 227 Mo. 260; K.C. Suburban Belt Ry. Co. v. Ry. Co., 118 Mo. 619; State v. Shipman, 93 Mo. 157. (4) The court erred in sustaining the application for the order nunc pro tunc and entering an order nunc pro tunc sustaining the so-called bill of peace. There was no record evidence warranting same, and there was no evidence to support same. It amounted to a judgment for defendant and denied a trial on the merits. Shepard v. Grier, 160 Mo. App. 614; Coy v. Landers, 146 Mo. App. 414; Belkin v. Rhodes, 76 Mo. 643; Clancy v. Luyties Realty Co., 10 S.W. (2d) 914; Jeude v. Sims, 258 Mo. 44; Railroad v. Holschlag, 144 Mo. 256.

John D. Wendorff for respondents.

(1) The appeal should be dismissed for the reasons: (a) No affidavit for appeal was ever filed in Division No. 6 and no bill of exceptions was ever allowed or filed in said Division No. 6, nor was any affidavit for appeal ever filed in Division No. 6, and no order allowing an appeal in this cause was ever made in said Division No. 6, the court that made and entered of record the order attempted to appeal from, but the bill of exceptions was allowed and signed by Judge BEN TERTE, Judge of Division No. 9, and said bill of exceptions and affidavit for appeal were filed in said Division No. 9 and the appeal was allowed by Judge BEN TERTE, the regularly elected, qualified and acting judge of said Division No. 9. (b) No appeal was taken during the term of court at which the order sought to appeal from was made and entered of record. The order attempted to appeal from was made and entered of record October 20, 1928, during the September Term, 1928, of said court, and the appeal was allowed May 14, 1929, during the May Term, 1929, of said circuit court, which was the second term after the term at which the order sought to appeal from was made. (c) No motion for a new trial was ever filed in Division No. 6, the court that made the order attempted to appeal from. (d) The order attempted to appeal from was made and entered of record in Division No. 6, October 20, 1928, and the motion for a new trial was filed in Division No. 5 of the Circuit Court October 25, 1928. Sec. 1020, R.S. 1929; Sec. 10005, R.S. 1928; Ford v. Ford, 24 S.W. (2d) 990; Everett v. Glenn, 35 S.W. (2d) 654; Bollinger v. Carrier, 79 Mo. 318; State ex rel. May Dept. Stores v. Haid (Mo.), 38 S.W. (2d) 44-45; State ex rel. Conant v. Trimble, 277 S.W. 916, 311 Mo. 128. (2) Division No. 6 of the Circuit Court of Jackson County, Missouri, was the only court in which a motion for a new trial could be filed and Division No. 6 was the only court in which an appeal could be taken from the order correcting the record nunc pro tunc for that was the court that made the only order attempted to appeal from. Voullaire v. Voullaire, 45 Mo. 608; Goddard v. Delaney, 80 S.W. 891, 181 Mo. 564; State ex rel. Paramount Progressive Order of Moose v. Miller, 273 S.W. 124; State ex rel. McCaffrey v. Eggers, 54 S.W. 499, 152 Mo. 495; Haehl v. Railroad Co., 24 S.W. 740, 119 Mo. 325. (3) Division No. 6 of the circuit court was the only court in which an order nunc pro tunc could be made correcting the order made in said division of said court May 6, 1927, and during the March Term, 1927, and said order nunc pro tunc could be made in Division No. 6 of said circuit court only by Judge BURNEY, the judge who made and entered said order May 6, 1927, after appellant filed his application for a change of venue in said cause from said Division No. 6. Sec. 822, R.S. 1929; Smith v. Delano, 166 S.W. 853, 179 Mo. App. 242; Exchange Natl. Bank v. Allen, 68 Mo. 475; Jones v. St. Joseph Fire & Marine Ins. Co., 55 Mo. 344; Dekalb County v. Hixon, 44 Mo. 342; Ross v. Railroad Co., 38 S.W. 928; Kansas City v. Woerishoeffer, 249 Mo. 26, 155 S.W. 779; Reed v. Colp, 213 Mo. 586, 112 S.W. 225.

FITZSIMMONS, C.

This is an action in ejectment. The principal question for decision is the authority of the court below (one of the Divisions of the Jackson County Circuit Court) to make an order nunc pro tunc. But first there must be examined certain objections of respondent (defendant below) to the consideration of the appeal upon its merits. These objections go to the filing of the motion for a new trial and to the validity of the order allowing an appeal.

The land in controversy lies in Platte County and this action was begun in the circuit court of that county, but, on the court's own motion, was transferred to the Circuit Court of Jackson County. The cause passed through several divisions of the Jackson County Circuit Court obviously by operation of rules of court and the periodical shifting of the assignment division. But one transfer was by change of venue from Division Six where the cause had two appearances. During its first pendency there and on May 6, 1927, during the March Term, 1927, the court by order of record sustained respondent Locke's plea in abatement, which had been filed in Division Two, February 15, 1927, during the January Term, 1927.

The order nunc pro tunc from which this appeal was taken, was made at a term of court subsequent to the March Term, 1927. It changed by way of correction the order sustaining the plea in abatement to an order or judgment granting to respondent Locke the prayer of a bill of peace, to which reference now will be made. While the plea in abatement was pending in Division Two and on April 21, 1927, during the March Term, 1927, respondent Locke filed an answer termed a bill of peace, and to this answer appellants filed a reply. It thus appears that, when Division Six sustained the plea in abatement on May 6, 1927, there was pending the bill of peace, the allegations of which had been placed at issue by reply.

The plea in abatement and the bill of peace were identical in their allegations. They differed only in the relief sought. They narrated a history of litigation affecting the same land and between the same parties beginning in February, 1915. These controversies included an unlawful detainer suit, decided by a Justice of the Peace in favor of Locke, respondent here, also a suit to quiet title, affirmed by the Supreme Court, June 8, 1922, in favor of Locke, respondent here, (Barr v. Stone (Mo.), 242 S.W. 661), also proceedings in the County Court of Platte County for the purchase of Locke of certain of the land here in suit, which proceedings, upon appeal, were decided by the Supreme Court, June 8, 1922, in favor of Locke, respondent here (Platte County v. Locke, 294 Mo. 207, 242 S.W. 666). And finally, respondent's pleadings alleged another ejectment suit, begun in Platte County and transferred on change of venue to Jackson County and pending in Division Seven of the circuit court of the latter county at the time of the filing of the bill of peace. The plea in abatement prayed for the dismissal of the instant case. The bill of peace asked that appellant be restrained from further prosecuting the case under review, and from instituting or prosecuting any other cause affecting the rights of the parties to the land in question except the other pending ejectment suit, upon the issues of which respondent desired to fight a conclusive battle for the land in suit. Appellant moved to strike from the record the order sustaining the plea in abatement. This motion underwent several orders in other divisions to which the cause passed. It is enough for the purposes of the questions here for decision that the ground of the motion to strike was that the filing of the bill of peace constituted an abandonment of the plea in abatement and therefore that the plea in abatement was without effect or validity at the time of the entry in Division Six of the order sustaining the plea.

On June 6, 1928, the assignment division, then number Four, sent the case back to number Six for all purposes, and on June 7, 1928, appellant filed an application for a change of venue on account of the bias and prejudice of the Judge of Division Six, he being the same judge who had sustained the plea in abatement. On June 8, 1928, during the May Term, 1928, respondent Locke filed in Division Six a motion for an order nunc pro tunc to correct the record entry made in that division at the March Term, 1927, sustaining the plea in abatement so that the order as corrected would be one sustaining respondent's bill of peace. On October 20, 1928, appellant filed in Division Six an amended application for a change of venue, alleging the prejudice of the judge of the division. Two days later the court sustained respondent's motion for an order nunc pro tunc, and granted appellant's application for a change of venue as to all matters "except as to the authority of the court to correct its own record in this cause." The cause was sent back to the...