Lane v. Dowd

• Citation: 172 Mo. 167,72 S.W. 632
• Parties: LANE v. DOWD.
• Decision Date: 24 February 1903
• Court: Missouri Supreme Court

72 S.W. 632

172 Mo. 167

LANE v. DOWD.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

JOINDER OF CAUSES OF ACTION — FORM OF JUDGMENT — HARMLESS ERROR — RECITAL IN JUDGMENT — INTRODUCTION OF EVIDENCE.

1. Under Rev. St. 1899, § 593, authorizing plaintiff to unite in the same petition several causes of action, whether they be such as have been heretofore denominated "legal" or "equitable," or both, where they arise out of transactions connected with the same subject-matter, there may be united a count in ejectment and a count under section 650, alleging that plaintiff is the owner of the land in dispute and that defendant makes some claim to it, and praying the court to ascertain and declare the title.

2. Even if the judgment should have been in the form of one on demurrer, instead of by default, this is harmless; it having been rendered a month after the overruling of the demurrer to the petition, during which no steps to answer were taken, and it not being claimed that any rights in respect to answering were denied.

3. A recital in the judgment that "proof was adduced" is conclusive, on appeal, that evidence was introduced.

Appeal from circuit court, Phelps county; L. B. Woodside, Judge.

Action by T. Lane against F. E. Dowd. Judgment for plaintiff. Defendant appeals. Affirmed.

This was an action in ejectment. Judgment was rendered in the trial court for the respondent. From this judgment this appeal is prosecuted. The original petition in this cause was filed on the 8th of February, 1899. As the only question involved in this controversy is in respect to the pleadings, we here insert them.

Omitting the caption of the original petition, it is as follows, to wit:

"Plaintiff for cause of action states that on the 1st day of October, 1898, he was the owner and entitled to the possession of the following described real estate, situate, lying, and being in the county of Phelps, Missouri, to wit, the southwest quarter, east half of lot one, northwest quarter, west half of lot one, northeast quarter, and west half of southeast quarter, of section five, and the southeast quarter and south half of southwest quarter of section six, all in township thirty-five, range eight west of the fifth principal meridian; and, being so entitled to the possession thereof, the defendant, on the 2d day of October, entered into the premises aforesaid, and unlawfully withholds the possession thereof from this plaintiff, to his damage in the sum of two hundred dollars. Plaintiff further states that the monthly value of the rents and profits of said premises is ten dollars. Wherefore plaintiff prays judgment against the defendant for the possession of said premises, and two hundred dollars damage for the unlawful withholding of the possession of the said premises by said defendant from plaintiff, and ten dollars per month from the rendition of judgment until possession is restored to plaintiff, and for all costs.

                    "Thos. M. & Cyrus H. Jones
                            "Attorneys for Plaintiff."
                

On said petition summons was issued by the said clerk of the circuit court, and placed in the hands of the sheriff of Phelps county, who made return thereon as follows:

"Executed the within writ in the county of Phelps and state of Missouri, on the 13th day of February, 1899, by delivering to F. E. Dowd a copy of the writ, together with the petition and summons.

                                   "J. C. Harvey
                    "Sheriff of Phelps County, Missouri."
                

On the 29th day of March, 1899, plaintiff filed in the circuit court of Phelps county during its session, the following amended petition, to wit:

"Plaintiff for amended petition states that on the 1st day of October, 1898, he was the owner and entitled to the possession of the following described real estate, situated, lying, and being in the county of Phelps, Missouri, to wit: The southwest quarter, east half of lot one, northwest quarter, west half of lot one, northeast quarter, and west half of southeast quarter, of section five, and the southeast quarter and south half of southwest quarter of section six, all in township thirty-five, range eight west of the fifth principal meridian; and, being so entitled to the possession thereof, the defendant, on the 2d day of October, entered the premises aforesaid, and unlawfully withholds the possession thereof from this plaintiff, to his damage in the sum of two hundred dollars. Plaintiff further states that the value of the monthly rents and profits of said premises is ten dollars. Wherefore plaintiff prays judgment against defendant for the possession of said premises, and two hundred dollars damage for the unlawful withholding of possession of said premises by said defendant from plaintiff, and ten dollars per month from the rendition of judgment until possession is restored to plaintiff.

"Second. Plaintiff for another cause of action states that he is the owner of the following described real estate, situate, lying, and being in the county of Phelps, state of Missouri, to wit: The southwest quarter, east half of lot one, northwest quarter, west half of lot one, northeast quarter, and west half southeast quarter, of section five, and southeast quarter and south half of southwest quarter of section six, all in township thirty-five, range eight west of the fifth principal meridian. Plaintiff further states that the defendant is claiming title to said real estate as aforesaid, and is claiming an estate in said property. Wherefore plaintiff prays the court to ascertain, determine, and adjudge plaintiff's title and interest in said real estate, and adjudge the plaintiff title thereto, and for all proper relief.

                        "Thos. M. & Cyrus H. Jones
                                "Attorneys for Plaintiff."
                

Afterwards, on the 18th day of September, 1899, being the first day of the regular September term of the circuit court of Phelps county, the defendant filed in this cause the following demurrer, to wit:

"Now comes the defendant, and demurs to the plaintiff's amended petition, because the second count, since the filing of the original petition, has been misjoined and improperly united therewith, in this: The original petition is an action of ejectment for the recovery of real property, with damages and rents and profits, in which the right of possession of real estate is the sole issue, and the second count in the amended petition raises an issue of title solely, independent of any right of possession of the real estate described, and belongs to a different class of actions.

                                           "A. Corse
                                 "Attorney for Defendant."
                

Said demurrer, upon being taken up and argued, was by the court overruled. Whereupon, on the 25th day of October, 1899, the court entered its judgment as follows, to wit:

"Now, at this day, this cause coming on to be heard, the plaintiff appears by his counsel and announces ready for trial; but the defendant, although duly summoned with process more than thirty days before the first day of this...