Perkins v. Baer

• Citation: 68 S.W. 939,95 Mo.App. 70
• Parties: ARCHELAUS M. PERKINS, Respondent, v. GEO. J. BAER et al., Appellants
• Decision Date: 02 June 1902
• Court: Court of Appeals of Kansas

68 S.W. 939

95 Mo.App. 70

ARCHELAUS M. PERKINS, Respondent, v. GEO. J. BAER et al., Appellants

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Chas B. Adams and Wash Adams for appellant.

(1) The petition is multifarious and the court erred in overruling the demurrer thereto. Mayberry v. McClurg, 51 Mo 256; Clark v. Ins. Co., 52 Mo. 272; Gaines v Chew, 2 How. (U.S.) 619; Harrison v. Hogg, 2 Ves. Jr. 323; Pope v. Leonard, 115 Mass. 286; Mullen v. Hewitt, 103 Mo. 639; May v. Hazlett, 6 Phila. 155; Emaus v. Emaus, 13 N.J.Eq. (2 Beasl.) 205. (2) The mere fact that all the taxbills described in the petition were issued under the special sewer law of 1893, does not purge the petition of the vice of multifariousness. That law has been declared unconstitutional and void by the Supreme Court of Missouri. Owen v. Baer, 154 Mo. 434. (3) If the validity of the taxbills depended upon that law alone, their invalidity would be apparent upon the face of the proceedings out of which they arose, and they would constitute no cloud upon plaintiff's title, and equitable relief would not be granted. Cooley on Taxation, 779; Clark v. Ins. Co., 52 Mo. 272; 6 Am. and Eng. Enc. Law (2 Ed.), 153; Holland v. Johnson, 80 Mo. 34; Townsend v. New York, 77 N.Y. 542; Verdin v. St. Louis, 131 Mo. l. c. 109; Railroad v. Nortoni, 154 Mo. 142; Detroit v. Martin, 34 Mich. 170; Choteau v. Allen, 70 Mo. 290. (4) A court of equity will not interfere to prevent a multiplicity of suits in the absence of a complete community of interest among the defendants on the question of law and fact to be decided. Michael v. St. Louis, 112 Mo. 615; Bouton v. City of Brooklyn, 15 Barb. 375; 1 Pom. Eq. Juris. (2 Ed.), secs. 260, 268. Courts of equity will not allow a multifarious bill as a remedy for a multiplicity of suits. Haines v. Carpenter, 1 Woods 262.

Scarritt, Griffith & Jones for respondent.

(1) The petition is not multifarious, and for this reason the appellants' demurrer was properly overruled. 14 Enc. of Plead. and Prac., 198; Martin v. Martin, 13 Mo. 37; Tucker v. Tucker, 29 Mo. 350; Donovan v. Dunning, 69 Mo. 436; Bobb v. Bobb, 76 Mo. 419; Rinehart v. Long, 95 Mo. 396; Ulman v. Iaeger, 67 F. 980. (2) A court of equity will interfere to prevent a multiplicity of suits. Biddle v. Ramsey, 52 Mo. 153; Parks v. Bank, 31 Mo.App. 12; Ulman v. Iaeger, 67 F. 980. (3) The trial court is possessed of great discretion with regard to the sufficiency of pleadings and the appellate court will not interfere unless it it manifest that such discretion has been abused. Shields v. Thomas, 18 How. (U.S.) 253; Gains v. Chew, 2 How. (U.S.) 620; Singer Manf'g Co. v. Springfield Foundry Co., 34 F. 393; Oliver and Williams v. Pratt (3 How.) U.S. 411. (4) Where the invalidity of the taxbills does not appear upon their face and must be established by proof aliunde, a court of equity will take jurisdiction.

OPINION

BROADDUS, J.

--This action is to remove a cloud cast upon plaintiff's title to certain real estate, situate in the city of Westport, Missouri, consisting of three separate tracts or parcels. It is alleged as to the defendants, Cotter, McDonnell & Co., that an ordinance of said city (No. 1291) approved February 27, 1895, provided for the building of sewers in sewer districts Nos. 1, 2, 3, 4, 9, 10, 11, 12 and 13, and that in pursuance of said ordinance the said city afterwards, on March 25, 1895, entered into a contract with said Cotter, McDonnell & Co. for the construction of said sewers; and that thereafter the said city in pursuance of said contract issued to the said company certain taxbills dated October 14, 1895, against plaintiff's real estate. Certain other taxbills against plaintiff's realty were also issued to said company under contracts made with the city under separate ordinances providing for the building of sewers in said sewer district. The defendants George J. Baer and the Robert J. Boyd Paving and Contracting Company had similar contracts, under different ordinances, for building sewers in said sewer district, under which separate taxbills were issued against plaintiff's said real estate. The defendant George W. Youmans was a purchaser of some of the taxbills issued to said Baer. The petition, after setting out said taxbills and the different ordinances under which they were issued in detail, is as follows:

"Plaintiff states that defendants are now the owners and holders of said taxbills and that said taxbills on their face purport to be a lien and demand on said lots and parcels of land paramount to plaintiff's ownership therein and title thereto, and defendants and each of them claim that said taxbills constitute such a lien, and threaten to foreclose the same, and thus cloud plaintiff's title thereto; but plaintiff alleges that said city of Westport had no power or authority under the law to pass said ordinance, or to make or let the said contract, or issue said taxbills, and that by reason thereof they are utterly invalid and void. Plaintiff further alleges that said taxbills, in law and in equity, do not constitute a lien or demand on or against said lots, and the said taxbills are a cloud on the plaintiff's title, for the reason that they are invalid, but their invalidity does not appear upon their face.

"Plaintiff further states that the said taxbills were issued by the said city of Westport under and in pursuance of an act of the General Assembly of Missouri, passed and approved in 1893, entitled 'An act concerning sewers and drains for cities in the State having special charters which now or hereafter contain more than two thousand and less than thirty thousand inhabitants, and for cities of the third and fourth classes,' approved March 18, 1893, and that said act was and is unconstitutional, null and void. Plaintiff charges that said taxbills were not issued under the act of the General Assembly approved April--, 1895, entitled 'An act to repeal article five of chapter thirty of the Revised Statutes of Missouri of 1889, and certain amendments thereto, said article five being entitled "Cities of the Fourth Class," and to enact in lieu thereof a new article providing for the government of cities of the fourth class,' approved April 11, 1895, pertaining to cities of the fourth class. Plaintiff further states that the defendants have commenced and are threatening to bring suit on said taxbills to enforce the alleged lien thereof against plaintiff's property; and that by reason of the premises plaintiff has no adequate or complete remedy at law.

"Wherefore plaintiff prays the court to adjudge and decree that said taxbills are invalid and constitute no lien or demand on said land, and in so far as they cloud or obscure plaintiff's title, that such cloud be removed, and that the defendants and each of them be ordered to surrender said taxbills into court and that they be cancelled on the proper records, and that the said defendants, each and all of them, be enjoined from further prosecuting or commencing any suit or suits on said taxbills, and that the court enter herein all other and further orders, judgments and decrees as to the court may seem proper."

The defendants (except defendant Lesam, who was dismissed by plaintiff) interposed each a separate demurrer in the following language, viz.: "1. Said petition fails to state facts sufficient to constitute a cause of action against defendant. 2. Said petition is multifarious in this, that it unites in one bill several distinct and independent matters arising out of different transactions and in no way connected, against several defendants. 3. There is a misjoinder of parties defendant in this, that some of the defendants have an interest in some of the matters charged, and no interest in or connection with other matters charged in the bill, several distinct and independent matters or causes of action, arising out of different transactions, being joined in the bill against several defendants having no common point of interest therein."

The demurrer, upon hearing, was overruled, and as the defendants stood upon their demurrers, judgment was rendered against them in accordance with the prayer of the petition, from which they have appealed. The only question presented for our consideration is one of pleading. It is, however, seemingly one of much difficulty.

The defendants contend that the plaintiff's bill is multifarious and presents no ground for the equitable relief prayed for. It will be seen that the plaintiff, seeks relief against the various taxbills issued under separate ordinances and separate contracts with different contractors, on the ground that they are invalid by reason of the fact that said ordinances and contracts were authorized by an act of the Legislature of the State of Missouri, approved March 18, 1893, which was unconstitutional, null and void, and that such taxbills are a cloud upon plaintiff's title, for the reason that they are invalid, but their invalidity does not appear upon their face. The question involved here has been ably argued by the respective counsel of the parties to the suit, and many authorities have been cited in support of the different theories presented.

The courts have undertaken to define the word "multifarious" as applied to pleadings, and different courts in so doing have adopted different modes of expression. In Clark v. Ins. Co., 52 Mo. 272, Judge WAGNER, in delivering the opinion of the court, adopted the definition found in Bouvier's Law Dictionary, viz "A bill is said to be multifarious, when distinct and independent matters are improperly joined whereby they are confounded, as, the writing in one bill of several matters perfectly...