Essen v. Adams

• Decision Date: 17 September 1938
• Docket Number: 34692
• Citation: 119 S.W.2d 773,342 Mo. 1196
• Parties: Hugo Essen and Alvina C. Essen, Appellants, v. Lawrence E. Adams; Bertha L. Adams; William F. Adams; Sophia I. Adams; Amelia Bellagama; August Schroeder; Annie Schroeder; Ferdinand Aubuchon; Martin Aubuchon; Louis Aubuchon; Theodore Aubuchon; Ellen P. Aubuchon; Laura Aubuchon; Paul Aubuchon; Lawrence v. Teson; Catherine Teson; Ignatius Lajeuness; Malina Lajeuness; Frank Laramie, also known as Frank Laramine; Frances Laramie, also known as Frances Laramine; St. Stanislaus Seminary, a Corporation; Walter F. Maschmidt and Minnie Maschmidt
• Court: Missouri Supreme Court

119 S.W.2d 773

342 Mo. 1196

Hugo Essen and Alvina C. Essen, Appellants, v. Lawrence E. Adams; Bertha L. Adams; William F. Adams; Sophia I. Adams; Amelia Bellagama; August Schroeder; Annie Schroeder; Ferdinand Aubuchon; Martin Aubuchon; Louis Aubuchon; Theodore Aubuchon; Ellen P. Aubuchon; Laura Aubuchon; Paul Aubuchon; Lawrence v. Teson; Catherine Teson; Ignatius Lajeuness; Malina Lajeuness; Frank Laramie, also known as Frank Laramine; Frances Laramie, also known as Frances Laramine; St. Stanislaus Seminary, a Corporation; Walter F. Maschmidt and Minnie Maschmidt

No. 34692

Supreme Court of Missouri

September 17, 1938

Rehearing Denied May 26, 1938.

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge; Opinion filed at September Term, 1937 April 1, 1938; motion for rehearing filed; motion overruled at May Term, 1938, May 26, 1938; motion to transfer to Court en Banc filed; motion overruled at September Term, 1938 September 17, 1938.

Affirmed.

Herbert W. Ziercher and William M. Fitch for appellants; Malcolm I. Frank of counsel.

(1) There is no question either of misjoinder of causes of action or of defendants appearing on the record in this case. (a) If there is a misjoinder of causes of action or of defendants, and such misjoinders appear on the face of the petition, then such misjoinder can only be raised by timely demurrer. Sec. 770, R. S. 1929; Cullen v. Atchison County, 268 S.W. 95. When there is a misjoinder of causes of action or of defendants appearing on the face of the petition, and it is not raised by demurrer, then such misjoinder is waived and it passes out of the case. Sec. 774, R. S. 1929. (b) If there be a misjoinder of causes of action or of defendants, and such misjoinder does not appear on the face of the petition, then such misjoinder can only be raised by setting forth the facts constituting such misjoinder in the answer. Sec. 774, R. S. 1929; Boggs v. M., K. & T. Ry. Co., 80 S.W.2d 146, 336 Mo. 528. (c) The defendants in this case, respondents here, seek to raise the fact of misjoinder of causes of action and of defendants, in so-called separate pleas in abatement, which pleas are not parts of the answers of such defendants previously filed. Sec. 774, R. S. 1929. (d) The evidence taken to support the so-called pleas in abatement was without authority of law and against all precedent, and could not support any issue sought to be raised by any such pleas. (e) The court rendered its judgment erroneously granting the prayers of the several so-called pleas in abatement. (2) The judgment of the court dismissing the amended petition is contrary to the record. (a) Five defendants were served personally and failed to plead or appear. On such record appellants were entitled to default judgment against each of such defendants. (b) Two defendants filed only general denials to the amended petition. Such answers entitled plaintiffs to judgment on the pleading as to such defendants, as by such answers such defendants passed out of the case. Rohlf v. Hayes, 287 Mo. 342, 229 S.W. 747. (c) Even though such defendants had embodied in their respective answers the additional facts set forth in their so-called plea in abatement for misjoinder, even then such answers would be inconsistent and repugnant to each other, in that the prayer for affirmative relief set out in the answers was repugnant and inconsistent to the prayer asking dismissal of the amended petition for misjoinder. Lampel Land & Imp. Co. v. Spellings, 236 Mo. 39, 139 S.W. 345. (d) The answer of the several defendants and the so-called joint and separate pleas in abatement presented no defensive issue upon which the court could rule against the plaintiffs and in favor of defendants or any of them. Such record wholly fails to support the judgment of the court below. (3) The amended petition as a whole presented equitable issues as destinguished from purely legal issues. It embodied the following elements: (a) To try to determine the title to lands described in plaintiffs' petition. (b) It seeks to avoid a multiplicity of suits where there is a common interest involved in each controversy between plaintiffs on one side, and the several defendants on the other. The primary question between such parties depends on the boundary line between the shore lands and island lands when the river ceased to flow between them. Cullen v. Atchison County, 268 S.W. 96; Lake Charles Rice Mill v. Pacific Rice Growers, 295 F. 249; Kingman v. Holthaus, 56 F. 307; 1 Pomeroy Equity Jurisprudence (3 Ed.), sec. 245, sub. 4.

Arthur U. Simmons and Edwin Rader for Frank and Frances Laramie.

Bloebaum & Bloebaum for Louis and Paul Aubuchon.

Robert F. Stanton and Walter Wehrle for St. Stanislaus Seminary.

Walter Wehrle for Lawrence and Bertha Adams, August Schroeder, Annie Schroeder, Ferdinand Aubuchon, Martin Aubuchon, Theodore Aubuchon, Ellen P. Aubuchon and Lawrence and Catherine Teson.

(1) The court did not err in sustaining respondents' pleas in abatement. Chaput v. Bock, 224 Mo. 73; Peniston v. Brick Co., 234 Mo. 698. (2) Misjoinder of parties and causes of action not appearing on the face of the petition, were properly reached by answers and pleas in abatement. Chaput v. Bock, 224 Mo. 73; Peniston v. Press Brick Co., 234 Mo. 698. (3) There was a misjoinder both as to parties and causes of action. It was proper for the trial court to hear evidence on the plea in abatement before hearing the case on its merits. Mertens v. McMahon, 66 S.W.2d 127; Mo. Stat. Ann., sec. 951, p. 1223. (4) The defenses set forth in the answers were not inconsistent. The petition described the entire 1400 acres of accretions in one general description. No one defendant claimed the entire 1400 acres, but did claim a part thereof and described that part in their respective answers. Chaput v. Bock, 224 Mo. 73; Peniston v. Press Brick Co., 234 Mo. 698. (5) The defendants did not pray for affirmative relief in their various answers. Each was entitled to a separate jury trial. The ten and thirty year statutes were pleaded. Peniston v. Press Brick Co., 234 Mo. 698; Lee v. Conran, 213 Mo. 405. (6) A suit cannot be maintained either at law or in equity against two or more persons, who have no common interest in the subject matter of the litigation, and a suit against numerous defendants, each in possession of a separate and distinct parcel of land claiming title to same by reason of long-continued adverse possession and disclaiming any interest in any other part of the land, cannot be maintained. Gardner v. Robertson, 208 Mo. 605; Ferguson v. Paschall, 11 Mo. 267; Sutton v. Casseleggi, 77 Mo. 397; Becker v. Stroeher, 167 Mo. 306; Mullen v. Hewitt, 103 Mo. 639; Hale v. Allinson, 188 U.S. 56; Illinois Steel Co. v. Schroeder, 14 A. L. R. (N. S.) 239. (7) The character of the suit provided for by Section 1520, Revised Statutes 1929, is dependent upon issues raised in the pleadings. If the issues thus raised are such as are triable before a jury, then the parties are entitled to a jury. Where the defendants in a suit under Section 1520, Revised Statutes 1929, pleaded title acquired by the Statute of Limitation, the action is legal and the defendants are entitled to a trial by jury. Chilton v. Comanianni, 221 Mo. 695; Lee v. Conran, 213 Mo. 404; Minor v. Burton, 228 Mo. 558.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

March 16, 1932, plaintiffs filed a petition (against 23 defendants) in the Circuit Court of St. Louis County to determine title to 1486 acres of land. The description is by metes and bounds, courses and distances. An amended petition alleges all of the essentials in the ordinary petition to determine title, and these further allegations not in the usual petition of the kind; (1) That the main body of the land was originally two separate islands in the Missouri River, which islands had been surveyed and sectionized by the United States; that afterwards and by action of the Missouri River the islands, by accretion or otherwise, came together by new made land; that the main channel of the Missouri River was originally between the islands and the St. Louis County shore; that afterwards and many years ago the main channel of the river changed to the north side of the islands, and between said islands and the St. Charles County shore; that said islands after the change in the channel of the river were rapidly extended to the St. Louis County shore; that such island accretions continued until the island land met the south bank of the river.

(2) Plaintiffs further allege that defendants have no record title to any of the lands described in the petition; that notwithstanding that defendants have no record title to the lands described, they have from time to time made oral claims and asserted that they had certain rights, titles, and estates in the lands; that by reason of such oral claims defendants have cast a cloud upon plaintiffs' title; (3) that the proof necessary to establish plaintiffs' title would be the same in determining the claim of each of the defendants, and that the claims of all defendants can be determined in one proceeding and that by so doing a multiplicity of suits would be avoided.

(4) It is alleged that the claims of defendants, and each of them are confusing and constitute many separate and distinct claims, but all of said claims would be governed by the same general facts and evidence and controlled by the same principles and rules of law as to the validity of their respective claims and that all of said claims may be settled and finally established and the rights of the parties ascertained and determined, and the boundary lines between the lands found to be owned by the plaintiffs and the lands, if any, found to be owned by the defendants, should be...