Gardner v. Robertson

• Citation: 106 S.W. 645,208 Mo. 605
• Parties: GARDNER et ux. v. ROBERTSON et al.
• Decision Date: 24 December 1907
• Court: United States State Supreme Court of Missouri

106 S.W. 645

208 Mo. 605

GARDNER et ux. v. ROBERTSON et al.

Supreme Court of Missouri. Division No. 1.

December 24, 1907.

1. QUIETING TITLE—PROCEEDINGS—PARTIES.

A husband and wife, claiming to own different tracts of land separately, cannot join as plaintiffs in an action to quiet title of all the tracts.

2. SAME.

Defendants who do not, in every instance, claim interests adverse to plaintiffs in the same tracts of land, cannot be joined in an action to quiet title of all the tracts.

3. PLEADING—DEFECTS—WAIVER BY FAILURE TO DEMUR.

A defect in the petition not attacked by demurrer or otherwise is waived by answering over.

4. APPEAL—RECORDS—COUNTER ABSTRACTS.

Where a respondent's abstract of title put in evidence at the trial could not be found at the time of appeal, having been used in another case with which respondent's attorney had no concern, and appellant reconstructed the abstract from notes and other memoranda of the trial, it was proper for respondent to embody the true abstract of title, when subsequently found, in his counter abstract.

5. SAME.

A litigant being charged with constructive notice of pleadings filed in the progress of live litigation, an overruled motion to affirm a judgment will not be reopened and sustained merely because respondent was not served with a copy of the suggestions and affidavits of appellant on which the denial of the motion was based.

6. SAME—REVIEW—ERROR WAIVED IN APPELLATE COURT.

An assignment of error as to admitting testimony will be overruled where the testimony claimed to be improperly admitted is not pointed out.

7. SAME—RECORD—BILL OF EXCEPTIONS.

Where the bill of exceptions contains no objection to the admission of a deed in evidence, an assignment of error therein must be overruled.

8. SAME.

An assignment of error that the court erred in not passing on objections to testimony when they were made, not being predicated of anything in the bill of exceptions, is bad.

9. SAME—REVIEW—BURDEN OF SHOWING ERROR.

An assignment of error that the judgment was for the wrong party throws the burden on appellant to show reversible error; the presumption being that the judgment was correct.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by Samuel Gardner and another against James M. Robertson and others. From a judgment in favor of plaintiffs, Albert W. Cody, and Frank Barker appeal. Affirmed.

Phillips & Phillips, for appellants. L. R. Thomason, for respondents.

LAMM, J.

Plaintiffs, husband and wife, sued Robertson and 23 others to quiet title in divers tracts of land in Butler county, under Rev. St. 1899, § 650 [Ann. St. 1906, p. 667]. Among the 23 are three Barkers, to wit, Albert W., Cody, and Frank. Plaintiffs had judgment, and from that judgment the Barkers appeal.

The petition is an omnibus pleading (not the draft of plaintiffs' present counsel), and on its face discloses a bundle of vices, viz., a misjoinder of plaintiffs, a misjoinder of defendants, and a misjoinder of causes of action. Plaintiffs are not jointly interested in the several parcels of land described in the petition. Each holds title distinct from the other in separate parcels. Therefore the husband should have brought a separate action covering his land, and the wife might have brought a separate action covering hers, though she had the statutory option of joining her husband. Rev. St. 1899, § 4335 [Ann. St. 1906, p. 2378]. Defendants, as likewise disclosed by the petition, do not in every instance claim interests adverse to plaintiffs in the same tracts of land. Therefore a separate action should have been brought against the different groups of defendants jointly interested, or severally claiming an adverse interest, in any one body of the land. Such being the case, the petition was bad, for that it improperly united several distinct and independent causes of action in one. The to be expected evil result followed, to wit, a conglomeration of evidence thrown at the court and making a maze of uncertainty wherein the judicial mind may grope as in a fog, unable to clearly apply the evidence to the issues, tracts, individual claims, etc. These defects in the petition were not struck at by demurrer or otherwise below; hence were waived by answering over (Hudson v. Wright [Mo. Sup., not yet officially reported] 103 S. W. 8), and are now only noticed because they and their attending chaos make a clear and full statement of the facts and issues out of the question.

1. Appellants file a motion to strike out respondents' "Abstract of Pleas, Proceedings and the Record." In aid of that motion, we are asked to pass a rule commanding the clerk of the circuit court of Butler county to produce here for inspection all the original files, including the bill of exceptions in this case, and a rule commanding respondents to produce for similar inspection a certain abstract of title, called for in the bill of exceptions and introduced below as evidence by them, under a rule of the trial court. Without awaiting a rule, there have been submitted here the original bill of exceptions and files, together with the document designated as "Plaintiffs' Abstract of Title." The integrity of these documents is not questioned. The only thing left for determination in this behalf, then, is whether appellants' motion to strike out respondents' counter abstract should be sustained. To get at the merits of that matter, we must go back a little in the history of the case in this court. There fell a time at a former term when respondents filed a motion to affirm, grounded on the fact that the cause was returnable to the October term, 1904, of this court, and appellants had failed to timely lodge here either a complete transcript, or a certified copy of the judgment with the order granting an appeal. On its face the motion was well made, but appellants made a counter showing by suggestions and affidavits. This phase of the case will receive further attention in the next paragraph of the opinion. For the present, it is sufficient to say the motion to affirm was overruled. Thereupon appellants in due time served and filed their abstract of record. The bill of exceptions contains the following offer of evidence, and makes the following call on the clerk, to wit (by plaintiffs' attorney): "I now offer the entire abstract of the plaintiff [which, being interpreted, means plaintiffs' abstract of their title to the lands in controversy], which is as follows: (The clerk will here copy abstract)."

It seems when appellants' counsel came to make an abstract of the record they could not find, with respondents' counsel, or in the files of the case, the abstract of title called for, as said, by the bill of exceptions. It seems the attorney trying the case for the Barkers had died, and their present counsel, perplexed in this dilemma, cast about for a way out. In searching among the papers of the deceased attorney, they discovered what was conceived to be his original notes and memoranda of the trial. Deeming these memoranda and notes (in the absence of better data) a proper reservoir of facts and information, they drew therefrom the wherewithal to reconstruct the abstract of title called for, and they put such reconstructed abstract of title in their abstract of record. Not only so, but they found in such memoranda...