Leavitt v. Lamb, 5465.

• Decision Date: 24 December 1934
• Docket Number: No. 5465.,5465.
• Parties: LEAVITT v. LAMB et al.
• Court: Missouri Court of Appeals

77 S.W.2d 505

LEAVITT v. LAMB et al.

No. 5465.

Springfield Court of Appeals. Missouri.

December 24, 1934.

Appeal from Circuit Court, Phelps County; J. H. Bowron, Judge.

"Not to be published in State Reports."

Suit by Olive B. Leavitt against L. W. Lamb and others. From the judgment, some of the defendants appeal.

Affirmed.

A. B. Holmes, of Rolla, for appellants.

Hutchison & Hutchison, of Vienna, for respondent.

SMITH, Judge.

The only question in this case arises upon the trial court's action in overruling a plea in abatement in which it was pleaded that a former suit was pending. Three of the defendants appealed.

The record shows that the plaintiff and the defendants are jointly interested in 240 acres of land in Phelps county, Mo., and this is a suit for partition of the land.

There is no controversy here over the interests owned by the plaintiff and the various defendants, and no controversy over the judgment of the court decreeing that the land was not susceptible of division in kind and that the lands be sold for cash and the proceeds divided according to the respective interests of the parties.

The only question here is that raised by three of the defendants who filed a plea in abatement of the suit filed by the plaintiff in this suit. These three defendants contend that a suit filed by L. W. Lamb, as plaintiff, against the other parties to this litigation should take precedence over this suit, and they contend the trial court erred in overruling their plea in abatement. They filed their motion for new trial and motion in arrest of judgment in time. These were overruled, and appeal was had to this court.

The plea in abatement, omitting caption, is as follows:

"Now this day come L. W. Lamb, Ernest Malone and Grace Sisco, defendants in the above entitled cause, and appearing for this purpose only, say that plaintiff ought not to have or maintain her action herein, because at the time of the commencement of said action and the order of the issuance of process therein for these defendants, the defendant L. W. Lamb had theretofore commenced a suit as plaintiff in the Circuit Court of Phelps County, Missouri, affecting the same subject matter as this suit, affecting the same parties as the parties to this cause of action, and praying for the same general relief as prayed for in this suit, and the said L. W. Lamb at the date of the commencement of his said suit had caused process to be issued thereon; that under and by virtue of the facts as herein stated that Court acquired jurisdiction in the case of L. W. Lamb, plaintiff, vs. J. E. Lamb, et al., defendants, being suit No. 3348, now upon the docket of this Court, prior to the commencement of this action and the order of issuance of process therein.

                                            "A. B. Holmes
                                            "G. L. Gamblin
                    "Attorneys for Defendants, L. W. Lamb
                      Ernest Malone and Grace Sisco
                

"A. B. Holmes, being duly sworn, upon his oath says that he is Agent and Attorney for L. W. Lamb, Ernest Malone and Grace Sisco, defendants in the above entitled cause of action; that he makes this affidavit in their behalf, and that the facts set forth in the above and foregoing Plea in Abatement are true.

                                            "A. B. Holmes
                

"Subscribed and sworn to before me this 4th day of September, 1933.

                              "Wes Smith, Circuit Clerk.
                "H. B. Perry, Deputy Clerk."
                

The facts as shown by this record are simple. The next regular term of the circuit court in Phelps county at the time this suit was filed was to commence on the 17th day of April. On March 30, 1933, the plaintiff in this suit filed a petition in the office of the clerk of the circuit court, which petition sought the partition of the 240 acres of land described in the petition. Hereinafter we shall refer to this suit as the first suit. The petition in this first suit named the parties interested in the land except one or two defendants. The attorney, upon filing the petition, directed the deputy clerk, who had charge of the office, to withhold issuing process until he could locate some of the defendants. On the 19th day of April, two days after the starting of the April term, process was ordered issued for the defendants named in the petition, returnable to the September term of the court, which was the term at which trial could have been had if process had been issued on March 30, the day the petition was filed.

On the 17th day of April, it being the first day of the April term, a petition was filed by L. W. Lamb, as plaintiff, naming as defendants the other parties named in the first suit. This suit, which for convenience we call the second suit, was filed for the partition of the same land as described in the first suit, and the respective interests were designated as being the same as shown in the first suit. There was no difference in these petitions as to the description of the lands nor as to the interests of the parties. Process was issued in the second suit filed two days before process was issued in the first suit. Both were returnable to the September term.

On the 6th day of July, 1933, during the April adjourned term, the plaintiff in the first suit, Olive B. Leavitt, amended her petition, bringing in James Hubert McWhorter and Louisa Mae McWhorter, as defendants, and summons was issued for them returnable to the September term. On May 29, 1933, the plaintiff in the second suit filed an amended petition bringing in as defendants in the second suit James Hubert McWhorter and Louisa Mae McWhorter. It is noticeable that the amendment in each of these petitions brings in the same new parties defendant. It is apparent that at the times of filing both of these petitions the whereabouts of some of the defendants were not known, and it looks very much like a race between the two as to which should file first. We might wonder if the fee allowed to the attorney for ...