Minor v. Burton

Decision Date31 May 1910
Citation228 Mo. 558,128 S.W. 964
PartiesMINOR v. BURTON.
CourtMissouri Supreme Court

Appeal from Circuit Court, Randolph County; Willard P. Cave, Special Judge.

Action by Monroe Minor against J. M. Burton. From a judgment for defendant, plaintiff appeals. Affirmed.

John N. Hamilton, for appellant. Hammett & Howard, for respondent

GRAVES, J.

This action involves a small tract of land in Randolph county. The quantity involved is about two acres, and in that portion of the S. ½ of the N. W. ¼ of section 10, township 53, range 15 W., lying north of Sweet Spring creek. The petition is in three counts. Count 1 is the ordinary pleading under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). Count 2 is an action for trespass, in which the damages are alleged to be $100 for cutting timber from said land, and $50 for the cultivation of a part thereof for the years 1905 and 1906, or a total of $150. The third count, which is denominated in the petition as a "further cause of action, and as auxiliary to the foregoing," is one praying for injunctive relief. Under this count a temporary injunction was granted.

The answer was first a general denial, to which was coupled a plea invoking the statute of limitations. In this portion of the answer it is averred that in 1865 one Samuel Minor owned the 80 acres of land described in plaintiff's petition, and Samuel Burton (father of defendant) owned the 80 acres adjoining on the north; that Sweet Spring creek ran through both 80's, so as to throw a part of the Burton 80 south of the creek and a part of the Minor 80 north of the creek; that the said Minor and Burton in 1865, in order to have their respective lands contiguous and all on one side of said creek, agreed to exchange the portions cut off by the creek as aforesaid, and to that end made and exchanged deeds conveying the same one to the other; that the defendant and his grantees have been in the open and adverse possession thereof from that date to the time of the suit. Reply denied the new matter in the answer, and averred that plaintiff and his grantors had been in the open and adverse possession thereof since 1863.

A jury was waived, as shown by the record, and the cause tried before a special judge. The court found for defendant in each count of the petition, and decreed title in defendant under the first count. The temporary injunction was dissolved. After proper steps plaintiff has appealed. Points made and the necessary portions of the testimony will be noted in the opinion.

1. Valuable in the disposition of this case is the fixing of the character of the suit. The first count of the petition is one under section 650. To this count the answer pleaded the statute of limitations. The issue thus made is one at law, and not in equity. On this issue either party was entitled to a jury. It was for a time a mooted question as to whether or not an action under section 650 was an action in equity or at law, but we finally determined the question in the recent case of Lee v. Conran, 213 Mo. 404, 111 S. W. 1151. In that case we concluded that the character of the suit was dependent upon the issues raised by the pleadings. If the issues thus raised are such as, at the adoption of our Constitution, were triable before a jury, then the parties in an action under section 650 are entitled to a jury, but, if the issues raised by the pleadings were not triable before a jury prior to the adoption of the Constitution, then the parties are not entitled to a jury. The action given by section 650 is statutory, and we think the construction given in the Lee Case, supra, is a reasonable one. Reverting now to the case at bar, there was no issue made by the pleadings under the first count which was not triable by a jury. The second count is one for damages alleged to have grown out of a trespass, which is a pure action at law. Thus far, the whole case is one triable by a...

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52 cases
  • Falvey v. Hicks
    • United States
    • Missouri Supreme Court
    • July 30, 1926
    ...issues tried, and as the parties made those issues the suit was one at law. Lee v. Conram, 213 Mo. 404, 111 S. W. 1151; Minor v. Burton, 228 Mo. 558, 128 S. W. 964. Under that view the finding of the court is not to be disturbed unless there is an absence of substantial evidence to sustain ......
  • Wolfersberger v. Hoppenjon
    • United States
    • Missouri Supreme Court
    • February 23, 1934
    ...and remanded the cause for the error of the court in overruling defendant's application for a trial by jury. In the case of Minor v. Burton, 228 Mo. 558, 128 S.W. 964, court ruled that a statutory cause of action to quiet title, stated in the first count, was at law because plaintiff relied......
  • Cape County Sav. Bank v. Wilson
    • United States
    • Missouri Court of Appeals
    • February 3, 1931
    ...the Constitution of Missouri, to a trial by jury upon the notes here sued upon. Constitution of Missouri, art. II, sec. 28; Minor v. Burton, 228 Mo. 558, 128 S.W. 964; Berry v. Railroad, 223 Mo. 358, 122 S.W. 1043. (a) Where the probate court has jurisdiction of the subject-matter of a suit......
  • Falvey v. Hicks
    • United States
    • Missouri Supreme Court
    • July 30, 1926
    ...Those were the issues tried, and as the parties made those issues the suit was one at law. [Lee v. Conran, 213 Mo. 404; Minor v. Burton, 228 Mo. 558.] Under that the finding of the court is not to be disturbed unless there is an absence of substantial evidence to sustain such finding, or, u......
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