Peniston v. Hydraulic Press Brick Co.

Decision Date01 June 1911
Citation138 S.W. 532,234 Mo. 698
CourtMissouri Supreme Court

Appeal from the St. Louis City Circuit Court. -- Hon. W. B. Homer Judge.


H. W Femmer for appellants.

(1) The plaintiffs' petition was not multifarious for the reason that it joined numerous defendants who claimed distinct and separate parcels of land, unconnected from the other defendants, for the reason, as set forth in plaintiffs' reply, that the defendants all claim title to the property described in plaintiffs' petition through a common source, and that plaintiffs claim the same property by a paramount title to that of the defendants. It is not necessary, in order to avoid misjoining parties defendants that each defendant should claim an interest in the whole land in controversy. Railroad v. Dyer, 5 F. 366; Gaines v. Mausseaux, Gaines v. Cronan, Gaines v. Compton, 9 F. 1049; Wilson v. Castro, 31 Cal. 431; 5 Ency. Pl. and Prac. 675. The first three cases above cited adjudicate the very point before this court in the cause at bar, and the facts in those cases are almost identical to the ones before this court. (2) When the point in issue is a matter of common interest among the parties to the suit, though the interest of the separate defendants are otherwise unconnected, still they may be joined. Reddick v. Newburn, 76 Mo. 423; Michael v. City of St. Louis, 112 Mo. 616; Donavan v. Dunning, 69 Mo. 438; Story Eq. Plead., sec. 285, 285a, 286; Rogers v. Blackwell, 49 Mich. 192; 15 Ency. Plead. and Prac. 676-677. (3) It is not necessary that each defendant should have an interest in the suit co-extensive with the claim set up by the bill; he may have an interest in a part of the matter in litigation, instead of the whole. Ingersoll v. Kirby, Walk. (Mich.) 65. (4) Where one general right is claimed in the bill covering the whole case, separate persons may be joined as codefendants, though they may have wholly distinct rights in the subject-matter of the suit. 15 Ency. Plead. and Prac. 677; Kingsbury v. Flowers, 65 Ala. 479; Brown v. Solary, 37 Fla. 102; Bowden v. Achor, 95 Ga. 243; Railroad v. Branch, 78 Ga. 113; Dimmock v. Bixby, 20 Pick. (Mass.) 368. (5) So where the same relief is asked against several defendants, and the liability of all the defendants arises out of the same transaction, or where they derive their titles from a common source and are charged with combination and fraud, and are all interested in the subject-matter of the suit there is no misjoinder of parties, although as to portions of the realty their titles may be distinct. 15 Ency. Plead. and Prac. 678. (6) It is wholly immaterial whether the interests of the several defendants are, or are not, in conflict with each other. Joinder is permitted in this class of cases for the purpose of avoiding a needless multiplicity of suits. 15 Ency. Plead. and Prac. 679; Lenz v. Prescott, 144 Mass. 505; Wilson v. Castro, 31 Cal. 428; Kennedy v. Kennedy, 2 Ala. 571; Brinnerhoff v. Brown, 6 Johns. Ch. (N. Y.) 151; Land Co. v. Guinault, 37 F. 523. (7) If there is any difference under the code, the rule is more liberal in permitting joinder of parties than in ordinary equity cases. Fairfield v. Bank, 77 Conn. 423; Demarest v. Holdman, 157 Ind. 467; West Muncie Strawboard Co. v. Slack, 164 Ind. 21; 30 Cyc. Law and Proc. 127, subd. 4. (8) A community of interest among defendants is necessary, but it is a community of interest in something wider than the precise "subject of action" between plaintiff and each defendant -- it is a community of interest "in the controversy." 30 Cyc. Law and Proc. 128; Fairfield v. Bank, 77 Conn. 423; Cemetery Assn. v. Peecher, 53 Conn. 555.

Eliot, Chaplin, Blayney & Bedal, Nagel & Kirby. Stewart, Bryan, Christie & Williams, Harold R. Small, A. & J. F. Lee, Geo. W. Lubke & Geo. W. Lubke, Jr., Theodore C. Eggers, Harmon J. Bliss, and Alexander Rahm for respondents.

(1) The character of the suit provided for by Sec. 2535, R. S. 1909, is dependent upon the issues raised in the pleadings. If the issues thus raised are such as are triable before a jury, then the parties are entitled to a jury. Where the defendants in a suit under section 2535 plead title acquired by the Statute of Limitation, the action is legal, and the defendants are entitled to a trial by jury. Minor v. Burton, 228 Mo. 558; Chilton v. Comanianni, 221 Mo. 695; Lee v. Conran, 213 Mo. 404. (2) Where in a suit under Sec. 2535, R. S. 1909, each defendant disclaims interest in the entire tract described in the petition, but claims a distinct, several and sole interest in a certain portion thereof, and claims title to that portion by reason of title arising by adverse possession, then there is a misjoinder of the defendants, and a misjoinder of causes of action, since the action as between plaintiff and each of the defendants so pleading is an action in which the issues are separate and distinct from the issues presented as between plaintiff and every other defendant. Chaput v. Bock, 224 Mo. 73; Ill. Steel Co. v. Schroeder, 133 Wis. 561; Buchanan Co. v. Adkins, 175 F. 692; Slosson v. McNulty, 125 Ala. 124. (3) Equity permits a joinder of defendants and a joinder of causes of action to avoid multiplicity of suits, but if the joinder would not prevent a multiplicity of suits and issues, this fact alone will defeat the joinder of defendants and causes of action. 1 Pomeroy, Equity Jurisprudence (3 Ed.), Sec. 251 1/2; Tribbette v. Railroad, 70 Miss. 182; Hale v. Allinson, 188 U.S. 56; Hale v. Allinson, 102 F. 790; Tompkins v. Craig, 93 F. 885; Railroad v. McFarlan, 3 N.J.Eq. 135; Rayner v. Julian, 2 Dickens, 677; O'Brien v. Fitzgerald, 39 N.Y.S. 709; Webb v. Parks, 110 Ga. 639; Portwood v. Huntress, 113 Ga. 819; Scott v. McFarland, 70 F. 280. (4) A petition in a suit against 475 defendants to quiet title to a tract of land comprising 306 acres in the city of St. Louis, to which each defendant filed a separate answer, each claiming to own a separate lot in said tract in severalty, and pleading a ten-year adverse possession, to which plaintiff replied, admitting that each defendant claimed in severalty the particular lot occupied by him and made no claim to any other part of the tract, is bad for multifariousness, and was properly dismissed. Ferguson v. Paschall, 11 Mo. 267; Sutton v. Casseleggi, 77 Mo. 397; Mullen v. Hewitt, 103 Mo. 639; Gardner v. Robertson, 208 Mo. 605; Ill. Steel Co. v. Schroeder, 133 Wis. 561; Hale v. Allinson, 188 U.S. 56; Chaput v. Bock, 224 Mo. 73. (5) Sec. 650, R. S. 1899 (R. S. 1909, Sec. 2535), does not justify such multifariousness. That section must be read in connection with the following section, and with the Code of Civil Procedure, and under the code if a petition on its face shows a misjoinder of causes of action it is demurrable, but if the defect does not appear upon its face, the objection may be taken by answer. Chaput v. Bock, 224 Mo. 73. (6) In order to justify the bringing by one plaintiff of a suit against numerous defendants there must exist among the defendants, or between each of them and the plaintiff, a common right, a community of interest, in the subject-matter of the controversy, or a common title from which all their separate claims and all the questions at issue arise. Chaput v. Bock, 224 Mo. 73. (7) The Code of Civil Procedure of this State providing for further pleading after the reply only in case the reply is demurrable, it follows that it is not necessary to traverse any allegation of new matter contained in such reply, and a failure to traverse or a motion of defendant for judgment on the pleadings does not admit the truth of such allegation. R. S., 1909, Sec. 607. (8) To authorize a party to unite in the same petition several causes of action they "must affect all the parties to the action and not require different places of trial, and must be separately stated with the relief sought for each cause of action in such manner that they may be intelligibly distinguished." R. S. 1909, sec. 1795. When all parties to the suit are not interested in each count of the petition there is a misjoinder. Beattie v. Gerardi, 166 Mo. 143. And when there are several causes of action there must be separate verdicts or findings on each of them. State v. Peterson, 142 Mo. 526. (9) Adverse possession of realty for ten years not only bars recovery, but vests perfect title in the adverse holder. Sherwood v. Baker, 105 Mo. 477; Franklin v. Cunningham, 187 Mo. 196. Whether or not the adverse claim and the possession thereunder was sufficient to confer title must be determined by the evidence in each case and must be left to the jury when title by adverse possession is pleaded. Gordon v. Park, 202 Mo. 236.



Plaintiffs sue in the circuit court of the city of St. Louis in 1906. Defendants are the Hydraulic Press Brick Company, a corporation, and 474 other corporations and individuals. The object of the suit is to try the title and determine the interests of plaintiffs and defendants respectively in and to 306 acres of land west of King's Highway in the city of St. Louis. [See Sec. 650, R. S. 1899; now Sec. 2535, R. S. 1909.]

Defendants answered separately. Plaintiffs replied and thereafter defendants moved for judgment on the pleadings. That motion was sustained on the 10th day of February, 1910, and (from a final judgment then rendered) plaintiffs appealed.

In October, 1910, one hundred and fifty of the defendants filed their motion in Banc to advance the cause. The showing made thereby was (among other things) that some of the corporate defendants were using the tracts claimed by them severally for business purposes; that some portion of the land was unimproved; but that...

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