Kimberlin v. Roberts

• Decision Date: 30 June 1937
• Docket Number: No. 34875.,34875.
• Citation: 107 S.W.2d 24
• Parties: EDDIE H. KIMBERLIN v. SAMUEL ROBERTS, Appellant.
• Court: Missouri Supreme Court

107 S.W.2d 24

EDDIE H. KIMBERLIN v. SAMUEL ROBERTS, Appellant.

No. 34875.

Supreme Court of Missouri.

Division One, June 30, 1937.

Appeal from Atchison Circuit Court. — Hon. Thomas A. Cummins, Judge.

REVERSED AND REMANDED.

Varro E. Tyler and Clayton W. Allen for appellant.

(1) In jury cases, the verdict must strictly follow and conform to the verdict. Newton v. Railroad Co., 168 Mo. App. 199, 153 S.W. 495; Benne v. Miller, 149 Mo. 288, 50 S.W. 824; Haumueller v. Ackerman, 130 Mo. App. 387, 109 S.W. 857. (2) An ambiguous or uncertain verdict is fatal to the judgment based thereon. Newton v. Railroad Co., 168 Mo. App. 199, 153 S.W. 495; Benne v. Miller, 149 Mo. 228, 50 S.W. 824; Haumueller v. Ackerman, 130 Mo. App. 387, 109 S.W. 857. (3) Where a judgment is based upon an ambiguous or uncertain verdict, such error is apparent on the face of the record and will be reviewed on appeal whether exceptions are taken or not; and in such cases motion for new trial or in arrest of judgment are unnecessary to preserve the error for review. Sec. 1063, R.S. 1929; Newton v. Railroad Co., 168 Mo. App. 199, 153 S.W. 495; Hannibal & St. Joseph Railroad Co. v. Hamoney, 42 Mo. 467; Nordmanser v. Hitchcock, 40 Mo. 178; Showles v. Freeman, 81 Mo. 540; Ryan v. Growney, 125 Mo. 474, 28 S.W. 189; Frowein v. Poage, 132 S.W. 241, 231 Mo. 82; Lindstrom v. K.C.S. Ry. Co., 202 Mo. App. 399, 218 S.W. 936; Roden v. Helm, 90 S.W. 798, 192 Mo. 71. (4) In ejectment cases (or suits to quiet title), the verdict and judgment in favor of plaintiff must be selfdemonstrating, and unless the description of the real estate therein is such that it will, without aid, show the land to be restored to the plaintiff, the error is fatal. Benne v. Miller, 50 S.W. 824, 149 Mo. 228.

W.L. Mulvania and A.H. Harvey for respondent.

(1) It is not contended by appellant that there is anything in his record to justify awarding any part of the land in question to appellant. The pleadings show that if respondent is entitled to the land he is entitled to all of it. If appellant was entitled to it he was entitled to all of it. There does not appear to be any controversy as to any part or parts of it. 22 Enc. Pleading & Practice, sec. 5, p. 986. (2) When a jury after making a proper finding and so reciting in their verdict go outside of their province and outside of the issue submitted and say in effect to the court "such part or portion as you find" such cannot be construed as any part of the verdict and is properly stricken out by the court when rendering the judgment. Buttron v. Bridell, 228 Mo. 633; Roman v. King, 268 S.W. 416. (3) Where the verdict of the jury was a finding for plaintiff, the description of the land found is sufficient, the verdict on its face shows that the additional words which follow are mere surplusage inserted by clerical error, the court properly ignored them in rendering judgment. Such was not error. St. Louis v. Senter Comm. Co., 102 S.W. (2d) 111; Holmes v. Braidwood, 82 Mo. 618; State v. Bohle, 182 Mo. 68; State ex rel. St. L. Pub. Serv. Co. v. Becker, 66 S.W. (2d) 145; Buttron v. Bridell, 228 Mo. 634; Ranney v. Bader, 48 Mo. 539; State ex rel. Webster v. Knight, 46 Mo. 83; Bredel v. Parker Russell Min. & Mfg. Co., 21 S.W. (2d) 936; Hays v. Hogan, 273 Mo. 26; Gaugh v. Hines, 229 S.W. 222.

BRADLEY, C.

Plaintiff, respondent here, filed petition in two counts to determine interest in and quiet title to (under Sec. 1520, R.S. 1929, Mo. Stat. Ann., sec. 1520, p. 1682) the lands described, and in ejectment. Defendant, by his answer, claimed to be "the owner in fee simple of all the lands described" in plaintiff's petition, and denied that plaintiff had any interest in said lands. The reply was a general denial. The cause was submitted to a jury, and the verdict was for plaintiff. Failing to get new trial on motion, defendant appealed. No bill of exceptions was filed, and there is nothing here, except the record proper, and there is no complaint on any part of the record proper, except the verdict and the judgment.

It is the contention of defendant that the verdict is not sufficient to support a valid judgment, and that the judgment is therefore void. The verdict is as follows: "We the jury find for the plaintiff, and that plaintiff is owner and entitled to the following lands situated in Atchison County, Mo. (Here follows description), or such part or portion, if any, as you may find from the evidence plaintiff is entitled to." (Italics ours.) The trial court, it would appear, in rendering judgment, treated the italicized portion of the verdict as mere surplusage, ignored it, and entered judgment as though such portion had not been in the verdict. The judgment, description omitted, is as follows: "Now on this 30th day of November, 1935, the same being the ____ day of the regular November, 1935, term of the Circuit Court of Atchison County. Missouri, this cause having been tried by a jury, the jury after having heard this evidence, received the instructions of the court and the argument of counsel, retired to deliberate on their verdict, and having by their verdict, found the issues for plaintiff, it is therefore by the court ordered and adjudged that plaintiff is the owner of lands described as: (description here), and that the defendant has no right, title, claim or interest in or to said above described lands; and it is further by the court ordered and adjudged that plaintiff have execution against said defendant for the recovery of said lands and the possession thereof, and have and recover his costs in this behalf expended."

[1] An action to determine interest and quiet title under Section 1520. Revised Statutes 1929, may be legal or equitable, according to the pleadings and the character of relief sought, either by plaintiff or defendant. [Ebbs v. Neff, 325 Mo. 1182, 30 S.W. (2d) 616, l.c. 620, and cases there cited.] In the prayer to the first count of the petition, plaintiff in addition to asking that the title be determined and quieted, further asked "that said defendant be forever enjoined, restrained, barred and prohibited from setting up, claiming or asserting any right, title, claim or interest in or to said real estate or any part thereof and from removing therefrom any fence, fences or improvements" on the described lands. And the answer to the first count denies that plaintiff had any interest in the land; alleges that defendant is the fee simple owner, entitled to possession and in possession, and "that defendant and those through whom his title and possession of said real estate are derived have more than ten years prior to the commencement of this action been" in adverse possession, "and have made lasting and valuable improvements thereon; and that the defendant's title and right to the possession of said real estate are based upon such adverse possession;" that plaintiff "during all of said period of time" knew that defendant and those through whom he claimed were in possession and claimed title, and knew that the improvements were being made; that notwithstanding this knowledge plaintiff did not assert any claim, and for these reasons, defendants allege that plaintiff is estopped to assert title. Further answering the first count, defendant alleges that early in the fall of 1933, defendant advised plaintiff that he (defendant) was about to purchase the land from one Leseberg who was then in possession and claimed ownership; and that plaintiff advised defendant to purchase and promised, upon defendant's purchase, to quitclaim to defendant whatever interest plaintiff had, and that in reliance upon this promise, defendant purchased from Leseberg, but that defendant failed to quitclaim as promised.

Defendant further alleges "that the lands described in plaintiff's petition are located in the Missouri River; that said lands were formed as islands in said river; that at and for a long time after the first formation or appearance of said lands as islands they were entirely surrounded by the water of said river and that for many years the water flowed between said lands and the Missouri bank of the Missouri River; that there were accretions to said islands from time to time until they became a large body of land and said accretions continued to enlarge the said islands until they were connected with each other and until the water which was previously between the said islands and the mainland on the Missouri side of said river was entirely displaced by the said accretions and the said islands were thereby connected to the high bank on the Missouri side of said river; that the said accretions which connected the said islands to the said high bank of said river were accretions to the said islands and not accretions to the mainland." The answer to the second count is similar to the answer to the first count.

We think that the prayer to the first count of the petition makes that count on the equity side of the court, although the judgment decrees no relief of an equity nature. The verdict was general and apparently was intended to cover both counts, since it was found that "plaintiff is the owner and...