Maginn v. Schmick

• Decision Date: 19 November 1907
• Parties: MAGINN v. SCHMICK et al.
• Court: Missouri Court of Appeals

105 S.W. 666

127 Mo. A. 411

MAGINN v. SCHMICK et al.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

1. APPEAL—REVIEW—RECORD—MATTERS REVIEWABLE.

Where plaintiff's petition or defendant's counterclaim fails to state facts sufficient to constitute a cause of action, the question of such sufficiency may be raised for the first time on appeal as error apparent on the face of the record.

2. LIBEL—SLANDER OF TITLE—ALLEGATIONS IN PLEADINGS.

Where the statements and allegations in a petition in a suit to quiet title were relevant and pertinent, they were privileged, and did not constitute actionable libel of defendant's title, alleged to have been besmirched thereby.

3. SAME—PUBLICATION OF NOTICE.

In a suit to quiet title, the publication of notice to nonresident defendants under statutory authority, and in obedience to the order of a court of competent jurisdiction, based upon a proper showing in the cause, was privileged, and did not constitute actionable libel.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Action by E. J. Maginn against Peter Schmick, William L. Austin, and others. From a judgment striking out defendant Austin's counterclaim, he appeals. Affirmed.

Charles D. Yancey, for appellant. J. P. Ford, for respondent.

NORTONI, J.

The action is under the statute to quiet title. Plaintiff instituted the suit in the circuit court of Ripley county against Austin and several other parties who were joined therein with him as defendants. It was alleged in the petition that the plaintiff was owner in fee simple and claimed title to certain real estate therein described, and that the defendants claimed some title, estate, or interest in or to the real estate mentioned, the nature and character of which was unknown to the plaintiff and could not be particularly described and set forth, except that it was adverse to the plaintiff's right. There was a further allegation to the effect that a number of the defendants to the action were nonresidents of the state of Missouri, and therefore personal service could not be had upon them. The petition prayed the court for an order of publication to bring in all of the nonresident parties to answer the proceeding and to quiet the title to the lands, etc.

Defendant Austin is a resident of Ripley county, and was personally summoned to appear and answer. An order of publication under the statute was taken against the nonresident defendants, which order, of course, recited the object and general nature of the suit. The defendant Austin appeared to the action and filed his answer thereto, denying the allegations of the complaint, averred that he was the owner of the lands described in fee simple, set up the statute of limitations and adverse possession thereof against the plaintiff, and for a further cross-action and counterclaim pleaded as follows: "This defendant, William L. Austin, for cause of action and complaint against the plaintiff, E. J. Maginn, states that on the 16th day of June, 1888, the defendant William L. Austin bought the land now claimed in this cause to be the property in fee of the plaintiff, E. J. Maginn, from William P. Haines and wife, for a valuable consideration paid at the time; that the said William P. Haines and wife, on the day and date last named, conveyed the said land, to wit, the southeast quarter of section fourteen, township twenty-three, range two east, by general warranty deed to the defendant, William L. Austin, who afterwards, on the 6th day of November, 1888, filed the same for record in the recorder's office in Ripley county, Mo., and said deed was, on that day, duly recorded in deed record book X, at page 388; that in the month of June, 1888, the defendants entered into the peaceable and full possession of the lands described, and did proceed to clear, fence, and improve the same, and did, under the full belief that he had a good and sufficient legal title to the same, reduce a large part of said land into cultivation, and did fence the same, and did erect a dwelling house and other necessary buildings on said premises, and by the expenditure of much money and labor did greatly improve said premises, and enhance the value thereof. Yet, notwithstanding the facts hereinbefore set forth, and being without the least shadow of title to said described land, and with full knowledge, actual and constructive, of this defendant's title and actual and visible possession of said land, the plaintiff, E. J. Maginn, did `trump up' a false and fraudulent claim of title to said land, and, without right, willfully, falsely, wrongfully, maliciously, and without probable cause did commence a suit, this same suit, in the circuit court of Ripley county, Mo., under the pretense of quieting the title to said lands, and did cause this defendant to be summoned into court to answer and defend against such fraudulent and `trumped up' claim of title, and did thereby, and by that means, libel this defendant's title to said lands, and by means of such false clamor (pro falso clamore) did defeat and prevent the exchange of this defendant's said lands for other lands, and did prevent, hinder, and delay this defendant from making a highly advantageous sale of said lands by means of the pendency of this suit, to the great damage, wrong, and injury of this defendant. The original petition containing such willful, false, wrongful, malicious, and defamatory claim of title to said lands by the said plaintiff, together with said summons, and the...