Norton v. Reed
| Decision Date | 13 March 1920 |
| Citation | 221 S.W. 6,281 Mo. 482 |
| Parties | MINNIE E. NORTON et al.; JOHN R. JOHNSON, Intervener, Appellant, v. ISAAC F. REED et al.; IDA HARLICK et al., Interveners |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. P. Foard, Judge.
Reversed and remanded (with directions).
Arthur T. Brewster, Buford & Chitwood, and J. B. Daniel for appellant.
(1) The suit having been brought against the person in actual possession it is immaterial that the grantor of interveners who claimed title to the land through an unrecorded deed was not made a party thereto. R. S. 1909, sec. 2385. (2) It being admitted by the pleadings that at the date of the order of dismissal the plaintiffs had parted with all their interest in the subject-matter of the suit and that said interest had passed by conveyance to the intervener at the date of the filing of the motion herein by him, the motion should have been sustained. (3) A motion in the nature of a writ of error coram nobis is the correct procedure to correct an error in a judgment, after the lapse of a term at which the judgment is rendered where the error is not patent on the record, but must be shown by evidence dehors the record. State ex rel. v. Riley, 219 Mo. 667; Hadley v. Bernero, 103 Mo.App. 549; Cross v. Gould, 131 Mo.App. 585; State v. Stanley, 225 Mo. 525; 5 Ency. Pleading & Practice, 27. (4) One not a party to an action, i. e. a stranger to the record, may file a motion in the nature of a writ of error coram nobis, if he is privy to the record or injured thereby. State ex rel. v. Riley, 219 Mo 684; 5 Ency. Pleading & Practice, 31; Dugan v Scott, 37 Mo.App. 663; State ex rel. v Heinrich, 14 Mo.App. 146. (5) Even if it were shown beyond question that the original petition was not signed by counsel, such error was waived by answering over to an amended petition and could not be successfully raised thereafter. Brookshier v. Mutual Fire Ins. Co., 91 Mo.App. 599. (6) Error in failing to sign a pleading, if objected to in due time, can be cured by amendment when attacked. Reamer v. Morrison Express Co., 93 Mo.App. 510.
R. I. January and J. H. Keith for respondents.
(1) All actions must be prosecuted in the name of the real party in interest, and to recover possession of real estate must be brought against the person in possession of the premises. Secs. 1729, 2585, R. S. 1909. (2) All pleadings shall be signed by the pleader or his attorney. R. S. 1909, sec. 1822; Orley Stain Co. v. Whitson, 34 Mo.App. 624. (3) To entitle plaintiff in ejectment to judgment, it is necessary to show that defendant in the suit, at the date of the commencement or filing of the suit, was in the possession of the premises. Sec. 2389, R. S. 1909; Haden v. Goodwin, 217 Mo. 662; Philips v. Philips, 187 Mo. 360. (4) A voluntary nonsuit will not be reviewed. Koger et al. v. Hays, Admr., 57 Mo. 329; Greene County Bank v. Gray, 146 Mo. 568; Sec. 1980, R. S. 1909. (5) Nonsuit abandons original suit. Karnes v. American Fire Ins. Co., 53 Mo. App., 440; Wiethaup v. City of St. Louis, 158 Mo. 655. (6) Stipulation could not affect rights of those not party. Barber Asphalt Paving Co. v. Young, 94 Mo.App. 214. (7) A judgment dismissing a cause cannot be set aside on motion after the end of the term at which it was rendered. Jameson v. Kinsey, 85 Mo.App. 301; State ex rel. Ozark County v. Tate, 109 Mo. 265; Peak v. Redd, 14 Mo. 79.
RAILEY, C. White and Mozley, C.C., concur.
On October 23, 1907, Minnie A. Norton, Catherine Dougherty, John C. Vandyke and James T. Vandyke, as plaintiffs, filed, in the Circuit Court of Reynolds County, Missouri, a petition in ejectment, against Isaac F. Reed and Martin Burnham, as defendants, to recover possession of an undivided four-fifths of the following described real estate located in said county, to-wit:
"All of the west half of the east half of Lot 2 of the northwest quarter of Section 5 in Township 29 of Range 1 east, except a strip one hundred and five feet wide off of the south end thereof."
Five suits in ejectment were filed by the same plaintiffs, on the same day, in the same court, against separate and distinct defendants. The title of the several defendants to the several tracts of land involved in said several suits depended, in each case, upon the sufficiency of a certain alministrator's deed, purporting to convey all of the land involved in said five suits, to a common grantor of all the defendants in said five actions. In the present action, the defendants were served with process on October 23, 1907, and thereafter answered in said cause. It is admitted by counsel in the present controversy, that Benjamin C. Vandyke, the father of plaintiffs, was the common source of title.
Benjamin C. Vandyke died in said county, on July 14, 1884, intestate, and left, as his only heirs at law, the above named plaintiffs and the minor children of his deceased daughter, Bertie E. Cooper, namely, Bessie Cooper, Morey Cooper, Carter Cooper, Charles Taylor and Clarence Taylor. The plaintiffs herein claimed to be the owners of the undivided four-fifths of said real estate, as tenants in common with the children of said Bertie E. Cooper, deceased, who claim to have owned an undivided one-fifth of same.
The date of ouster is named as August 4, 1901.
On December 5, 1907, during the November Term, 1907, of the Reynolds Circuit Court, and after the above named defendants herein had been served with process and answered in said cause, a stipulation was filed therein, by the respective parties thereto, which without caption and signatures, reads as follows:
Said stipulation was signed by attorneys, J. B. Daniel, John H. Raney and R. L. McLaran, in behalf of said plaintiffs, and by S. L. Clark and R. I. January, as attorneys for defendants herein.
After one of said five suits had been tried in the Circuit Court of Reynolds County, to-wit, that of Minnie A. Norton et al. v. Joseph A. Reed, the stipulation aforesaid was filed herein. The above named case against Joseph A. Reed was decided by the circuit court, in favor of plaintiffs, and defendants duly appealed said cause to the supreme Court of Missouri, where it will be found reported in 253 Mo. 236 at 236-7 (161 S.W. 842). The supreme Court, on December 6, 1913, affirmed the judgment of the Reynolds Circuit Court in the above cause.
Thereafter, before the next term of the Reynolds Circuit Court, plaintiffs in the present suit sold all their interest in the subject-matter of this action, to said defendant, Joseph A. Reed, who thereafter executed a deed, conveying to the intervener herein, John R. Johnson, all of the land involved in this suit. Said deed from Joseph A. Reed to said John R. Johnson was duly recorded in Reynolds County, on September 5, 1914. By the terms of said sale between plaintiffs and said Joseph A. Reed, it was agreed that said Reed should, and he did, pay all the costs in this suit. Thereafter, on November 25, 1914, an order was entered of record in this cause in the Circuit Court of Reynolds County, reciting, after the caption, the following: "Dismissed by plaintiffs, all costs having been paid."
Thereafter, on November 29, 1916, John R. Johnson, as intervener herein, filed in this cause, a motion in the nature of a writ of error coram nobis, setting out the facts aforesaid, and praying to be substituted as plaintiff herein, instead of the plaintiffs, who had, after suit filed, and before judgment rendered, parted with their interest in the subject-matter of this suit, averring, that said order of dismissal was erroneously made and praying that the same be set aside, and judgment rendered herein upon the stipulation aforesaid. Said Johnson, for convenience, will hereafter be designated as appellant.
At the time of the institution of this suit, the defendant, Isaac F. Reed, appeared by the records of Reynolds County, Missouri, to be the record owner of the lands in controversy, if said administrator's deed passed any title thereto, and the said defendant, with Martin Burnham, were in the actual possession thereof.
As above indicated, this suit was filed October 23, 1907. A like suit involving the same subject-matter for the same plaintiffs, and against the same defendants, had theretofore been filed, plaintiffs had suffered a nonsuit, and thereafter, within one year after said nonsuit, filed the present action. The defendant, Isaac F. Reed, on October 22 1907, one day before the filing of this suit, had executed a deed to one J. C. Webb, purporting to convey to him the lands in dispute, but the deed was not filed for record until the day after the filing of this suit. Thereafter, the said J. C. Webb, executed a deed purporting to convey these lands to his then wife, now Ida M. Herlick, who...
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