Dysart v. Crow
Decision Date | 26 November 1902 |
Citation | 70 S.W. 689,170 Mo. 275 |
Parties | DYSART et al. v. CROW et al. |
Court | Missouri Supreme Court |
Action by B. G. Dysart and others against G. W. Crow and others. From a judgment in favor of defendants sustaining a demurrer to an amended petition, plaintiffs appeal. Reversed.
T. F. Hurd and Bodine & Reynolds, for appellants. Geo. W. Humphrey, J. M. Crutcher, T. P. Bashaw, and R. B. Bristow, for respondents.
This is a suit in equity for contribution. The plaintiffs, jointly with defendants Crow, Curtright, Lowenstein, Vaughn, and Crutcher, and one Charles M. Reed, now deceased, made their negotiable promissory note for $6,000, payable to Frank L. Pitts, who afterwards indorsed and delivered it to one Reynolds. After the maturity of the note, the plaintiffs jointly paid $4,000 on it, and subsequently, with defendant Crow, who contributed thereto $600, they paid the balance. The total amount thus paid for principal and interest was $8,657.39. Since the payment the defendants Vaughn and Crutcher have paid to plaintiffs their contributive shares, respectively. After the death of Charles M. Reed, the defendants T. W. P. Reed and Mary S. Reed qualified as executors of his will, and are in charge of his estate as such. Except the payment of $600 by Crow, and the contributions of Vaughn and Crutcher, as stated, nothing has been paid or contributed by the other defendants, or by Reed in his lifetime. The plaintiffs filed their bill in equity, stating in proper detail the above-mentioned facts, and praying for an accounting and contribution from those defendants who have not contributed, and for general equitable relief. The amended petition, upon which the judgment was rendered, is set out in full in the abstract of the record, but it is unnecessary to copy it in this statement. It is sufficient to say of it that it is in proper form and substance to entitle the plaintiffs to the relief prayed, unless it is defective in the particular features presently mentioned, specified in the demurrer. The defendants demurred to the amended petition, specifying 12 grounds, but the 12 assignments are reducible to 2, viz.: That a court of equity has not jurisdiction of the case; that there is a misjoinder of parties. The court sustained the demurrer, and, the plaintiffs not pleading further, final judgment for defendants was rendered. It appears from the record that the plaintiffs excepted to the ruling of the court sustaining the demurrer, and that they filed a motion for a new trial, based on the alleged error of the court in that respect, which motion was overruled, exception taken, and a bill of exceptions signed and filed, and made a part of the record. The cause comes here on the plaintiffs' appeal, who assign for error the sustaining of the demurrer to their amended petition.
1. The amended petition, the demurrer, and the judgment of the court on the demurrer are matters that are covered by the record proper, and are reviewable on appeal, without a motion for a new trial, and without exceptions. A bill of exceptions is designed to preserve for the information of the appellate court matters in pais, which are not otherwise matters of record. The exceptions, the motion for a new trial, and the bill of exceptions were, therefore, all unnecessary.
2. The real point in dispute in this case is that a court of equity has jurisdiction at the suit of some of the parties to a joint liability who have discharged the whole burden to bring in the others, and require them to make contribution, and an equitable adjustment of the burden, and settle the whole controversy in one suit. The plaintiffs' bill is bottomed on the theory that a court of equity has that jurisdiction. The defendants, by their demurrer, say that the plaintiffs' only remedy is at law. A court of equity, by its peculiar organization, and its course of procedure, can in one suit, if the parties are within the reach of its process, bring in all concerned, and so adjust the common burden as that it will be borne equally. And there is no other tribunal that can so readily and effectually accomplish that purpose. The learned counsel for the respondents, in their brief, concede that courts of equity formerly entertained jurisdiction in cases like this; but they say that since courts of law have assumed jurisdiction in such cases, and especially since that jurisdiction has been...
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Darling v. Buddy
...were entitled to contribution from the respondents. Timberlake v. Hughes, 65 Mo. App. 640; Richardson v. Pitts, 71 Mo. 128; Dysart v. Crow, 170 Mo. 275; Sicklesteel v. Edmonds, 147 N.W. 1029; Victor Refining Co. v. Bank, 263 S.W. 622, 274 S.W. 561; 33 C.J. 888, sec. 35; 15 R.C.L. 507. (5) E......
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