Gray v. Payne

• Decision Date: 31 January 1869
• Citation: 43 Mo. 203
• Parties: J. P. H. GRAY, Defendant in Error, v. THOMAS PAYNE et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

43 Mo. 203

J. P. H. GRAY, Defendant in Error,

v.THOMAS PAYNE et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

Burke & Howard, and G. T. White, for plaintiffs in error.

It is irregular to join and try ejectment and a bill in equity at the same time. The court will take notice of the record, if the case appears so to have been tried, whether exceptions were taken or not. (Farmers' Bank v. Bayliss, 41 Mo. 274-5; Peyton v. Rose, 41 Mo. 261.) Joint judgment against several parties not jointly liable is erroneous.

Neither motions for new trial, nor in arrest, nor bills of exceptions, are requisite to give this court jurisdiction, if errors appear upon the record. (Bransteter v. Rives, 34 Mo. 318-321; Mason v. Barnard, 36 Mo. 384; Carter v. Scaggs, 38 Mo. 303, 498-9; Hoppe v. Stone, 39 Mo. 378; Nordmanser v. Hitchcock, 40 Mo. 178, 602; Peyton v. Rose, 41 Mo. 261.)

Ewing & Smith, with Owens & Wood, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced in the Cole County Circuit Court. The petition contained two counts. The first count was in ejectment, for recovering the possession of certain premises therein described. The second count was in the nature of a bill in equity, asking to have a conveyance transferring the title to the premises to the defendant set aside as fraudulent, and vesting the same in the plaintiff. The court treated both counts as one action, and submitted them jointly to a jury, with instructions covering the whole case, and the jury found a general verdict for the plaintiff, upon which verdict a judgment was rendered setting aside the conveyance to the defendant as fraudulent, vesting the title in the plaintiff, and also awarding to him the possession. This judgment was affirmed in the District Court, and the cause is brought here by writ of error.

As the case is now presented, the only question which will be noticed arises upon the pleadings. That there is a misjoinder of causes of action combined in the petition is patent, and that the objection is fatal is well established by a uniform current of decisions in this court. It is true the point was not raised in the court below by the defendant's counsel, but the matter is apparent upon the face of the record, and will be noticed here on either error or appeal, whether exceptions were saved or not.

The practice act providing for the joinder of different causes of action furnishes no sanction to the proceeding. It has been frequently held that an action for ejectment and one in partition could not be joined. (Lambert v. Blumenthal, 26 Mo. 47; Gott v. Powell, 41 Mo. 416.) And the very question under consideration was examined and considered by this court in the case of Peyton v. Rose (41 Mo. 257), where it was held, after mature deliberation, that in a bill to set aside a deed as fraudulent, as to creditors, the plaintiff could not sue for recovery of the land. It is unnecessary to repeat the...