Hyer v. Baker
| Decision Date | 07 November 1938 |
| Citation | 121 S.W.2d 278,233 Mo.App. 450 |
| Parties | NELLIE S. HYER ET AL., APPELLANTS, v. ANNA BAKER ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from Johnson Circuit Court.--Hon. Leslie A. Bruce, Judge.
DISMISSED.
Motion to dismiss appeal sustained.
M. D Aber for plaintiffs.
(1) Upon their own pleadings, defendants McGraw and Boyd are not entitled to have prayer of the petitions granted because, (a) they have and had an adequate remedy at law, by merely waiting the outcome of hearing upon the issues tendered. Kersey v. O'Day, 173 Mo. 560, l. c. 568; State ex rel. v. Green, 92 S.W.2d 936; Arn v Arn, 81 Mo.App. 133; Hathaway v. Foy, 40 Mo 540. (b) Their pleading holds no threat of impending suit against them for rents by either of the claimants of the title. 33 C. J., p. 446, sec. 28; Sup. Council v Palmer, 107 Mo.App. 164; Bank v. Seifert, 223 Mo.App. 431, 18 S.W.2d 572, 574; Borchers v. Barckers, 158 Mo.App. 267; Funk v. Avery, 84 Mo.App. 490; Trust Co. v. Bank, 161 Mo.App. 431; Rys. Co. v. O'Connor, 153 Mo.App. 129, 136. (c) The pleadings of Boyd and McGraw as to Count II disclose that they are not in fact disinterested as between the parties. That Count is in ejectment. Boyd and McGraw claim their rights by rental from Baker, recognizing the rights of that group and are therefore adverse to plaintiffs. Pomeroy's Eq. Jur. (4 Ed.), sec. 1322; State ex rel. v. Green, 92 S.W.2d 935. (d) To entitle a litigant to right to require others to interplead for any fund or thing, such litigant must neither have nor claim any interest in the subject matter. Here the subject matter is whether or not plaintiffs have right to possession of the real estate. Boyd and McGraw are claiming such right by virtue of rental from Baker and do not tender it, nor could they. State ex rel. v. Green, 92 S.W.2d 935. (e) Another omitted essential is that the Boyd-McGraw pleadings failed utterly to show any privity or common source as to right of possession or to receipt of rents as between plaintiffs and those under whom they held and claimed. Pomeroy's Eq. Juris (4 Ed.), sec. 1324. (f) Another fatal defect in their pleadings is that they do show an independent liability to one group, and affirmatively show no liability to the other. If they rented from Baker, a title claimant, they could not be liable for rents to the Stone heirs. Pomeroy's Eq. Jur. (4 Ed.), sec. 1326; St. ex rel. v. Green, 92 S.W.2d, l. c. 935; Smith v. Grant, 124 Mo.App. 181, 202; Snodgrass v. Butler, 54 Miss. 45; Hartsook v. Chrissman, 114 Mo.App. 561; Kersey v. O'Day, 173 Mo. 560. (2) And it is not necessary that demurrer be filed to permit this point to be raised here. Humphreys v. Milling Co., 98 Mo. 552-3. (3) Where one is indebted to one of two persons, but does not know which of them the law requires him to pay, he may secure the advice of a lawyer to aid him in determining which of the two he should pay. But he has no right to ask a court of equity to act as his attorney, and that too, at the cost of his creditors. In such a case the debtor in making the payment must "protect himself as best he can," for a court of equity will not, in such a case, perform the functions of a legal adviser. Hartsook v. Chrissman, 114 Mo.App. 561; Sullivan v. K. of F. M., 73 Mo.App. 45; Kersey v. O'Day, 173 N. 560; Funk v. Avery, 84 Mo.App. 494. (4) Appeal lies from the judgment rendered on the pleadings filed by Boyd and McGraw. LaFayette Bank v. Seifert, 223 Mo.App. 431, 18 S.W.2d 572, 3; Roselle v. Bank, 119 Mo. 84, 92. (5) The judgment discharging McGraw and Boyd operates to destroy the cause of action set up by plaintiffs' petition and put us out of Court. In ejectment occupants must be made parties defendant. Section 1368, R. S., 1929; L. I. Co. v. Wright, 265 Mo. 210, 216; McKay v. Ins. Co., 35 S.W.2d 667. (6) Neither Boyd nor McGraw assert that they are tenants of plaintiffs. Such relationship can be created only by contract. Unless the Baker heirs win either title or right of possession, Boyd and McGraw are trespassers and intruders in the property. 16 R. C. L., sec. 2, p. 530; Edmonson v. Kite, 43 Mo. 176, l. c. 179. (7) And a tenant cannot deny title of his landlord; neither repudiate it nor take any adverse action to it during his occupancy thereunder. Higgins v. Turner, 61 Mo. 249; Grant v. White, 42 Mo. 285; 16 R. C. L., p. 650.
A. R. Thompson, Jr., for respondents.
(1) This appeal should be dismissed at the outset. "Appellants' Statement, Brief and Argument and Abstract of the Record" herein wholly fails to comply with Rule 16 and 17 of this court and that no statement of the case is contained therein--certainly no clear and concise statement of the case without argument or reference to the issues of law. Seifert v. Seifert, (Mo. 1932), 52 S.W.2d 817; Mass. Bonding Co. v. Coal Co., 226 S.W. 961; Bank of Meta v. Schnitzler, 67 S.W.2d 106; R. S., 1929, Section 1060; Court Rule 16; Wyatt v. Kansas City Art Institute, 88 S.W.2d 210, 211; Schell v. Coal Co., 79 S.W.2d 543, 545; Court Rule 17. This situation and state of the pleadings and of this appeal--in which the pleadings are most strongly construed in favor of respondents--clearly entitled the court to enter its judgment affirming the answering interpleas and ordering the rival claimants to further plead, setting up their respective claims to the funds in question. McGinn v. Interstate National Bank, 178 Mo.App. 347, 350, 351; Prudential Ins. Co. v. Sheehan (Mo. App.), 100 S.W.2d 57, 59; Concordia Fire Ins. Co. v. Alexander (Mo. App.), 50 S.W.2d 687, 688, 689; Sovereign Camp W. O. W. v. Wood, 100 Mo.App. 655, 658; Glaser v. Priest, 29 Mo.App. 1; 33 Corpus Juris 435, 444; Granite Bituminous Paving Co. v. Strange, 37 S.W.2d 469, 472; State ex rel. Reed v. Barrett (Mo. App. 1938), 118 S.W.2d 33, 36.
This is an action in two counts. The first one is to quiet the title to two lots in the City of Warrensburg, and the second one in ejectment. From an order requiring certain of the defendants to interplead, plaintiffs have appealed.
The case was set for hearing in this court on October 8, 1938. On October 6, 1938, defendants filed a motion to dismiss the appeal on the ground that there had been no statement filed by the appellants. On the same day appellants filed a motion to amend their brief by inserting a statement, which was tendered with the motion, stating that the statement was omitted from the brief through inadvertence in that the statement was not sent to the printer to be inserted in the brief and that this omission was not noticed until the copy of the motion to dismiss was served upon the attorney for the appellants.
Section 1060, Revised Statutes, 1929, provides as follows:
"On appeals and writs of error each party shall, on or before the day next preceding the day on which the cause is docketed for hearing, make out and furnish the court with a clear and concise statement of the case, and the points intended to be insisted on in argument."
In compliance with the statute we passed our Rule 16, requiring such a statement, as is mentioned in the statute and, under our Rule 18, dismissal of an...
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