Hartvedt v. Harpst

• Decision Date: 06 July 1943
• Docket Number: No. 38434.,38434.
• Citation: 173 S.W.2d 65
• Parties: HARTVEDT v. HARPST.
• Court: Missouri Supreme Court

173 S.W.2d 65

HARTVEDT v. HARPST.

No. 38434.

Supreme Court of Missouri, Division No. 1.

July 6, 1943.

Rehearing Denied July 20, 1943.

Appeal from Circuit Court, Clay County; James S. Rooney, Judge.

Action to quiet title and in ejectment for real estate by Andrew Hartvedt against Otto Harpst. Judgment was entered dismissing his petition when plaintiff refused to plead further after defendant's motion to make the petition more definite and certain was sustained, plaintiff's motion for new trial was overruled, and plaintiff appeals.

Judgment reversed and cause remanded.

Oscar D. McCollum and Walter J. Gresham, both of Kansas City, for appellant.

Terrence Riley, of Platte City, and James S. Simrall, of Liberty, for respondent.

DALTON, Commissioner.

Action to quiet title and in ejectment for real estate in Platte county. The trial court sustained defendant's motion to make the petition more definite and certain with reference to the description of the real estate claimed. Plaintiff refused to plead further and his petition was dismissed and judgment was entered for defendant. Motion for a new trial was filed and overruled and plaintiff appealed.

The description in the petition, after naming the county and state, is as follows: "An island in the Missouri River lying partly in sections 31 and 32, township 54, range 36, and partly in sections 4, 5, 6, 8, 9, and 16, township 53, range 36, and being the same island described in patent from Platte county to this plaintiff, dated March 3, 1924, and recorded in Book 98 at page 132 of the deed records of said county, together with all accretions that have been added thereto."

The petition then states that the patent of March 3, 1924, was in lieu of one dated November 1, 1920, containing an error in description; that the "corrected patent conveyed to this plaintiff all of said island to the water's edge together with all accretions thereto; * * * that he (plaintiff) has been the owner of said island ever since the date of said patent to him, November 1, 1920, and that he has paid the taxes levied and assessed against same from and since said date. That certain accretions have formed onto said island by gradual and imperceptible means until same now contains approximately 1358 acres, and extends into what would otherwise be sections 31 and 32 in township 54, range 36, and sections 4, 5, 6, 8, 9, and 16 in township 53, range 36, and that plaintiff is the owner of all of said island by virtue of said accretions thereto."

Defendant first demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action against defendant. The demurrer was overruled. Defendant then, by motion, asked the court "to require plaintiff to make his said petition more definite and certain by setting out therein a definite description by metes and bounds, or otherwise, of the land plaintiff claims and setting out by definite description what land plaintiff claims as accretion, if any, for the reason that the description of land in plaintiff's petition is so vague, uncertain and indefinite as to render indentification impossible, and that for the further reason that defendant is entitled to be advised what land plaintiff claims by definite description."

On the hearing of the motion, plaintiff offered in evidence defendant's abandoned answer, which had been filed in the cause, but was later withdrawn by leave of court when permission was granted for the filing of the motion to make more definite and certain. The answer contained a statement "that defendant is the owner and in possession of all of the real estate designated and described in plaintiff's petition and that he has owned and been in possession of said real estate since June 10th, 1927." The offer was refused.

Plaintiff further offered in evidence the patents referred to in his petition, to wit, the patent containing the alleged erroneous description and the patent containing the corrected description. The corrected patent contained the following description: "An island in the Missouri River hereby designated as Hartveldt Island, lying in the South Half of Section 5, and the North Half of Section 8, in Township 53 North, Range 36 West, more particularly described as follows, * * * (We omit the metes and bounds description) * * * containing: In the SE ¼ of section 5-53-36 7.45 acres, In the SW ¼ of sections 5-53-36 17.54 acres, In the NW ¼ of section 8-53-36 2.04 acres, In the NE ¼ of section 8-53-36 12.97 acres, Total 40.00 acres: * * * the intention being to convey all of said island to the water's edge with all rights of accretion; said island now being somewhat larger than above description, some accretion having been added to same since the original sale and conveyance above referred to, in which an erroneous description was made in the deed." The offer was refused.

The court, thereupon, sustained defendant's motion to make the petition more definite and certain and assigned as ground therefor the following: "for the reason that the description of the land in the petition is so vague, uncertain and indefinite as to render identification impossible."

Appellant contends that the court erred "(1) in allowing defendant to withdraw answer and file motion to make more definite; (2) in refusing to consider defendant's abandoned answer; (3) in excluding the pleaded patents; (4) in sustaining the motion to make definite; and (5) in dismissing the petition and rendering judgment for defendant." Appellant further states that "all of the assignments of error rest basically upon the error of holding that the description of the land in the petition is so vague, uncertain and indefinite as to make identification impossible."

Section 937, R.S. 1939, Mo.R.S.A. § 937, provides that "when the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent, and when they fail in any other respect to conform to the requirements of the law, the court may require the pleading to be made definite and certain, and otherwise conform to the law, by amendment."

A motion to make a pleading more definite and certain is addressed to the sound discretion of the trial court. Sartin v. Springfield Hospital Association, Mo. Sup., 195 S.W. 1037, 1038; Ozark Fruit Growers' Association v. Sullinger, Mo.App., 45 S.W.2d 887, 889; 4 C.J. 801. § 2758; 5 J.S., Appeal and Error, § 1587, p. 478. In the Sartin case, supra , this court said: "But, like the granting of a motion for new trial, the discretion exercised must be a sound legal discretion, and not a capricious or arbitrary discretion. For the furtherance of justice many things are left to the sound discretion of the trial court, and this court will not interfere with the exercise of such sound discretion, but we will interfere, if it appears that there has been an unsound, capricious, or arbitrary exercise of discretion. The question then is, Did the court nisi exercise a sound legal discretion in sustaining the motion to make the petition more definite and certain? * * * In fact the filing of a motion to make more specific and certain is, in effect, a concession that a cause of action is stated in the petition, but, in effect, it challenges the injustice of such petition as to the defendant. The peculiar province of the trial court is to take such action as will insure a fair and impartial trial to all litigants, whether they be plaintiffs or defendants, and hence numerous discretionary orders may be made by such court in the course of the litigation, and its discretion, when soundly exercised, will not be disturbed by this tribunal."

A motion to make a petition more definite and certain and a demurrer to a pleading do not serve the same function. Stonemets v. Head, 248 Mo. 243, 252, 154 S.W. 108, 111; MacAdam v. Scudder, 127 Mo. 345, 355, 30 S.W. 168; W. E. Stewart Land Company v. Perkins, 290 Mo. 194, 234 S.W. 653, 654; Meade v. Brown, Mo.App., 282 S.W. 457, 458; Browning v. Wells Fargo & Co. Express, Mo.App., 219 S.W. 665, 666; Ball v. Neosho, 109 Mo.App. 683, 83 S.W. 777; Houts Missouri Pleading & Practice, Vol. I, p. 256, § 126; 49 C.J. p. 727, § 1030. A defendant "is entitled to demur if the facts stated are not sufficient to constitute a cause of action, or to a motion to make specific and definite if the facts are stated too generally and too indefinitely." Jordan v. St. Joseph Railway, Light, Heat, & Power Co., 335 Mo. 319, 73 S.W.2d 205, 209. "A petition may be so drawn that a demurrer thereto would not lie, and yet be so indefinite and uncertain as to make it unfair for the defendant to be forced to a trial thereon." Sartin v. Springfield Hospital Association, supra. By motion to make more definite and certain a defendant is "entitled to have the cause of action stated with precision, definiteness and directness." Metropolitan Paving Company v. Brown-Crummer Investment Company, en banc, 309 Mo. 638, 274 S.W. 815, 822.

A motion to make more definite and certain, like a demurrer to a pleading, is directed to the pleading itself and "the motion will lie only when the uncertainty and indefiniteness appear on the face of the pleading." 49 C.J. p. 730, § 1030. In this case the motion is expressly directed to the sufficiency of the description in the petition, not for the purpose of determining whether a cause of action is stated, but to determine whether the "precise nature of the charge" is apparent and whether the description is so indefinite and uncertain as to make it unfair for defendant to be forced to a trial thereon. In the determination of such issue, it is only necessary to consider the petition on file. The court, therefore, did not err in refusing the exhibits offered by plaintiff at the hearing on the motion. Defendant was not bound by the allegations of his abandoned answer on the issue presented by the motion. Defendant proceeded properly in asking leave to withdraw his...