Pitts v. Pitts

• Decision Date: 22 February 1907
• Citation: 100 S.W. 1047,201 Mo. 356
• Parties: PITTS et al. v. PITTS et al.
• Court: Missouri Supreme Court

100 S.W. 1047

201 Mo. 356

PITTS et al. v. PITTS et al.

Supreme Court of Missouri. Division No. 1.

February 22, 1907.

1. ACTIONS—EQUITABLE DEFENSES—TRIAL.

Rev. St. 1899, § 605 [Ann. St. 1906, p. 635], provides that defendant may set up by answer as many defenses and counterclaims as he may have, whether legal or equitable, or both. Held, that under such section the pleading of a mere equitable defense in a law action leaves the case one at law, to be tried by a jury, while, if the answer pleads facts entitling defendant to affirmative equitable relief, the action becomes a suit in equity, to be tried by a chancellor.

2. APPEAL — REVIEW — CHANCELLOR'S FINDINGS.

Equity suits being heard de novo on appeal, the chancellor's findings are regarded as advisory only, and not conclusive on the appellate court.

3. SAME—REVIEW OF EVIDENCE—RECORD.

On appeal from a decree in equity, an objection that the decree is not supported by the findings of fact cannot be considered, where the evidence is not preserved in the record.

Appeal from Circuit Court, Hickory County; Argus Cox, Judge.

Ejectment by M. R. Pitts and others against James J. Pitts and another. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

Rechow & Pufahl, for appellants. J. H. Childers, for respondents.

LAMM, J.

Plaintiffs sued Jas. J. Pitts in ejectment for the S. W. ¼ of the S. E. ¼ of section 1, township 35, range 22, in Hickory county, Mo., laying their ouster as of the 2d day of May, 1902. As Elenor Britton filed a separate answer, we assume that by mediate steps she was made a party defendant. The answers of Pitts and Mrs. Britton set forth equitable matter as a defense and prayed affirmative equitable relief. A finding of facts was requested by plaintiffs, was made by the trial court, and incorporated into the decree. On that finding of facts the decree went for defendants, and plaintiffs appeal here on the record proper—in this case, petition, answers, replication, and decree.

1. At the threshold we are met with the question: Did this case, on these answers, remain at law, or did it become a case in equity? Whatever may have been the ancient practice, whereby there was a gulf fixed between equity and law, so that a case brought as a law suit could not be changed and pass over into an equity suit, yet, under our Code, it is no longer so. A defendant may now plead his equitable defenses when sued at law. Under somewhat deceptive catchwords, section 605, Rev. St. 1899 [Am. St. 1906, p. 635], provides as follows: "* * * The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. * * *" In establishing a working theory for the administration of this statutory rule, it has been determined that a mere equitable defense, without more, leaves the case one at law, to be tried by a jury; but if the answer go further, and pleads facts entitling defendant to affirmative equitable relief, and such relief be asked, then the case goes over to the chancery side of the court, to be heard by the chancellor as an equity suit. Carter v. Pryor, 78 Mo. 222; Kerstner v. Vorweg, 130 Mo. 196, 32 S. W. 298; O'Day v. Conn, 131 Mo. 321, 32 S. W. 1109; Swon v. Stevens, 143 Mo. 384, 45 S. W. 270; Martin v. Turnbaugh, 153 Mo. 172, 54 S. W. 515; Shaffer v. Detie, 191 Mo., loc. cit. 388, 90 S. W. 131; Bouton v. Pippin, 192 Mo., loc. cit. 473, 91 S. W. 149; Cobe v. Lovan, 193...