Liggett v. Kimball

• Citation: 108 S.W.2d 134
• Decision Date: 26 August 1937
• Docket Number: No. 34369.,34369.
• Parties: BAIRD LIGGETT v. GEORGE E. KIMBALL, HAL H. LIGGETT and FLOYD ADAIR, Appellants.
• Court: United States State Supreme Court of Missouri

108 S.W.2d 134

BAIRD LIGGETT v. GEORGE E. KIMBALL, HAL H. LIGGETT and FLOYD ADAIR, Appellants.

No. 34369.

Supreme Court of Missouri.

Division Two, August 26, 1937.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

AFFIRMED.

George E. Kimball, Prince & Beery and Ruby D. Garrett for appellants.

(1) To maintain an action of trespass, plaintiff must show actual or constructive possession, and cannot recover unless he does so. Moore v. Perry, 61 Mo. 174; Hawkins v. Roby, 77 Mo. 140. (2) A petition cannot be amended so as to institute a different cause of action from the one originally stated. Lumpkin v. Collier, 69 Mo. 170; Liese v. Meyer, 45 S.W. 282, 143 Mo. 547; Ross v. Cleveland & A. Mining Co., 62 S.W. 984; Grigsby v. Barton County, 69 S.W. 296, 169 Mo. 221; Briyles v. Eversmeyer, 171 S.W. 334, 262 Mo. 384; Boyd v. St. L. Brewing Assn., 5 S.W. (2d) 46, 318 Mo. 1206; Mo. Lbr. & Mining Co. v. Zeitinger, 45 Mo. App. 114; Peery v. Q.O. & K.C. Railroad Co., 99 S.W. 14, 122 Mo. App. 177; Ingwerson v. C. & A. Ry. Co., 130 S.W. 411, 150 Mo. App. 374; Bick v. Vaughn, 120 S.W. 618, 140 Mo. App. 595. (3) The court erred in admitting the judgment entry in the former suit which was on appeal, in evidence over the objection of the defendants, as the court had judicial knowledge, and the record showed it had been appealed from, and the force of the judgment was suspended by the appeal. R.S. 1929, sec. 1022; Vantine v. Butler, 157 S.W. 588, 250 Mo. 445. (4) The court erred in overruling defendants' motion to stay after the amended petition was permitted to be filed, as there was a prior suit pending between the same plaintiff and two of these defendants involving title to the same land in controversy here; the plaintiff had split his cause of action by bringing the first suit, and this action was vexatious. Doebbling v. Quimby, 299 S.W. 629, 221 Mo. App. 1178; Stump v. Hornback, 18 S.W. 37, 109 Mo. 272; Nolker v. Nolker, 257 S.W. 798; Vantine v. Butler, 157 S.W. 588, 250 Mo. 445.

William B. Dickinson and Martin B. Dickinson for respondent.

(1) There was no error in permitting the amendment of plaintiff's petition, and had there been any, defendants waived it by proceeding to trial. Ross v. Mineral Land Co., 162 Mo. 317, 62 S.W. 984; Liese v. Meyer, 143 Mo. 547, 45 S.W. 282. (2) The court did not err in receiving in evidence the judgment entered in the title suit, now here on appeal. Mann v. Doerr, 222 Mo. 1, 121 S.W. 91; Rodney v. Gibbs, 184 Mo. 1, 82 S.W. 187. (3) There was no error in overruling defendants' motion to stay, either for the reason that there was a prior suit pending, or for the reason that plaintiff had split his cause of action. Secs. 770, 774, R.S. 1929; Armor v. Frey, 253 Mo. 447, 161 S.W. 829; Mann v. Doerr, 222 Mo. 1, 121 S.W. 86. (4) There was no error in the direction of the verdict.

COOLEY, C.

This is a companion case to Baird Liggett v. Mary H. Liggett et al., 341 Mo. 213, 108 S.W. (2d) 129, decided herewith, and involves the same eighty-acre tract of land. Said tract of land with other lands belonged to Mary H. Liggett, mother of plaintiff, in her lifetime. She died in August, 1932, leaving a will by which she devised said eighty acres to plaintiff. The will contained a forfeiture clause providing that any child who should contest the will should forfeit his or her portion. The will further provided that tenants in possession at testatrix' death should retain possession till the end of the rental year in which she might die. The term of the tenant of this eighty expired February 28, 1933.

By his original petition herein, filed March 13, 1933, plaintiff claimed that on the evening of said February 28th, by agreement with the tenant, he moved household goods into the house and acquired possession, the understanding between him and the tenant being that the latter might remain in the house till she could remove her belongings; that about midnight that night defendants unlawfully and forcibly entered the premises and by threats and intimidation forced him and his wife to leave. He prayed actual and punitive damages and that defendants be enjoined from further occupying the premises and for general relief.

Defendants filed answer, denying plaintiff's claim of ownership, pleading the will of Mary H. Liggett, and asserting that plaintiff had contested the will, thereby forfeiting his devise and therefore had no title to the land and, consequently, no right to possession; that the title was in Kimball, as trustee for the Salvation Army, subject to a life estate in defendant Hal H. Liggett, and that Adair was in actual possession as tenant of Kimball or of him and Hal H. Liggett.

The case came to trial in December, 1934. At that time the case of Liggett v. Liggett, supra, had been tried in the circuit court, resulting in a judgment for plaintiff adjudging him to be the owner of said eighty. An appeal had been taken from that judgment, which was then undetermined. The judgment, however, was offered and admitted in evidence.

During the trial of this case plaintiff, over defendants' objections, was permitted to file an amended petition. It was in two counts, the first being a count in ejectment, alleging ownership and right of possession in plaintiff, with the usual prayer for possession, damages, etc. The second count was in effect an action for damages as for trespass. Said second count was dismissed before the trial progressed further and need not be noticed. After unavailing motions to strike out the amended petition, for a continuance and for a stay of proceedings until the case of Liggett v. Liggett, supra, should be decided on appeal, defendants refiled their answer to plaintiff's original petition as their answer to the amended petition and the trial progressed to a conclusion on the ejectment count of the amended petition and defendants' said answer thereto.

At the close of the case the court directed a verdict for the plaintiff, submitting only the amount of damages, if any, the reasonable value of rents and profits from March 1, 1933, to...