Priddy et al. v. MacKenzie

• Decision Date: 29 May 1907
• Citation: 205 Mo. 181,103 S.W. 968
• Parties: PRIDDY et al. v. MacKENZIE.
• Court: Missouri Supreme Court

103 S.W. 968

205 Mo. 181

PRIDDY et al. v. MacKENZIE.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. VENUE — CHANGE — PREJUDICE OF JUDGE.

Where an application for a change of venue for prejudice of the judge was not filed until the date the case was set for trial, and the record in a similar case disclosed that plaintiff had knowledge of the grounds alleged for a considerable time before, the court did not abuse its discretion in denying the application because not filed in time.

2. ATTORNEY AND CLIENT — KNOWLEDGE OF ATTORNEY.

An attorney's knowledge that certain trial judges were prejudiced against his clients so as to justify an application for a change of venue was the knowledge of the clients.

3. SAME — NEGLIGENCE OF PARTNER — LIABILITY OF FIRM.

Where a member of a firm of lawyers was negligent in the examination of an abstract of title, and approved the title which was about to be purchased by the firm's client, regardless of an outstanding equity, each member of the firm notwithstanding a dissolution was responsible for the loss caused by the partner's negligence, though they had no knowledge thereof.

4. JUDGES — DISQUALIFICATION — INTEREST.

Where a judge before whom certain suits involving the title to certain land were called for trial had been a member of a partnership during the period when one of the members of the firm had approved the title to the property for a purchaser notwithstanding plaintiff's alleged outstanding equity, the judge being liable to respond for any loss sustained in case plaintiffs recovered, was interested in the result of the suit, and therefore disqualified under Rev. St. 1899, § 819 [Ann. St. 1906, p. 791], declaring that if any judge is interested, the court or judge shall award a change of venue without application from either party, unless all the parties to the cause consent that he may sit, etc.

5. EJECTMENT — CONSOLIDATION OF ACTIONS — POWER.

Rev. St. 1899, § 749 [Ann. St. 1906, p. 735], provides that whenever several suits founded alone on liquidated demands shall be pending in the same court by the same plaintiff against the same defendant, or whenever several

such suits are pending in such court by the same plaintiff against several defendants, the court in which the same shall be prosecuted may in its discretion, if it appears expedient, order the suits to be consolidated into one action. Held, that such section declared the sole power of the trial court to consolidate actions so that the court had no power to consolidate several actions in ejectment, and to set aside an alleged invalid deed brought by plaintiffs against different defendants, though some of the questions involved were the same.

Error to Circuit Court, Jackson County; James Gibson, Judge.

Action by G. W. Priddy and others against James MacKenzie. The case and certain others for similar relief against other defendants and with reference to other property were consolidated over plaintiff's protest, and from a judgment in favor of defendant, plaintiffs bring error. Reversed and remanded.

The plaintiffs instituted this suit in the circuit court of Jackson county, Mo., against defendant, seeking to have a certain deed of conveyance, described in the first count of the petition, set aside and held for naught, because of the alleged claim that the grantors were at the time of its execution minors, and had, after attaining their majority, disaffirmed the same, and asks that it be declared null and void, and because it casts a cloud upon the title to their lands. The second count was an ordinary petition in ejectment, asking for the possession of the land described in the deed and damages for the unlawful withholding the possession from plaintiffs, and for the monthly rents and profits. The first count was substantially as follows: Thomas Jones departed this life in 1843, intestate, owning, among other, the land in controversy, and left surviving him his widow, Martha Jones, and nine minor children. Two of those children were Nancy and Elizabeth Jones. In 1850 the former married James J. Priddy, and the latter, in 1854, William Linville. At the death of Thomas Jones he owned a large tract of land in said county, and in proper time and in due form fifty-odd acres of it was assigned and set off to his widow, Martha Jones, as her dower, a portion of which are the lots in question. The widow died in 1868, and James J. Priddy died in July, 1869, and his wife, Nancy, departed this life on April 10, 1892, and Elizabeth Linville died November 3, 1892. Martha Jones occupied the dowry land until death, and on May 5, 1853, Nancy Priddy and her husband and Elizabeth Jones, then minors, executed a deed to Lott Coffman, in which they attempted to convey all their interest, being two-ninths of the fifty-odd acre tract, to said Coffman. That long before the institution of this suit the plaintiffs, who are the lineal descendents of Nancy Priddy and Elizabeth Linville, disaffirmed said deed, and gave record notice thereof. That both Nancy and Elizabeth also disaffirmed said deed prior to their demise. That defendant, through mesne conveyances from Coffman, had acquired the legal title, and was in the possession of lots 1 to 10, both inclusive, of Independence Avenue Addition, which are a part of the same lands described in the Priddy and Jones deed to Coffman of May 5, 1853. That in 1852 James J. Priddy conveyed his estate, by the curtesy, to said Lott Coffman. The prayer is for cancellation of the deed to Coffman, and for the ascertainment and determination of the interests of all the parties to the suit in and to the land in controversy, and for general relief. The defendant's answer was: First, a general denial; second, the 30-year statute of limitations; third, that Nancy Priddy and Elizabeth Jones were each over 21 years of age on May 5, 1853, when they executed the deed to Coffman, and that said deed was valid and conveyed all their right, title, and interest in and to said land to Coffman, and that he had lawfully acquired Coffman's interests in said lots; fourth, an estoppel; fifth, a prayer for the cancellation of a power of attorney executed by James J. Priddy and Nancy Priddy, his wife, to S. P. Forsee, authorizing him to sell certain property, including the lots in controversy, and to sue and recover the possession of the same; and, sixth, and that the deed, dated May 5, 1853, from Nancy Priddy and husband and Elizabeth Jones to Lott Coffman be adjudged valid and in full force and effect, and sufficient to and did convey all their rights, title, and interest in and to said land to said Coffman, and for general equitable relief.

The record in this case shows that there were eight other suits pending at the time in the various divisions of the circuit court of Jackson county, instituted by these same plaintiffs but against different defendants, all of whom were in possession of different tracts or portions of the land conveyed by Nancy Priddy and husband and Elizabeth Jones to Lott Coffman on May 5, 1853, all involving the validity of said deed. The answers in all of those cases were substantially the same as the one in this case. This and one other of the nine cases were pending in division No. 1 of said court, which was presided over by Judge Gibson, and the other seven were pending in the other divisions thereof. On June 25, 1903, all of the cases, over plaintiffs' objections, were transferred to division 1 of said court; that on June 26th, the next day, plaintiffs filed an application for a change of venue in each case. The one filed in this case, formal parts omitted, was as follows:

"Come now the plaintiffs in the above-entitled cause and move the court to grant them a change of venue thereof to some other county than Jackson county, and assign as causes therefor the causes set out in the affidavit, hereinafter made and attached, and made a part of this application. S. P. Forsee, Attorney for Plaintiffs.

"State of Missouri, County of Jackson — Before the undersigned notary public within and for the county and state last aforesaid, this day personally appeared Mattie Linville and W. P. Linville, who being by me first duly sworn on oath say they are two of the plaintiffs in the above-entitled cause, and make this affidavit in behalf of themselves and of all of said plaintiffs. The affiants have just cause to believe, and do believe, that none of the plaintiffs can have a fair and impartial trial in said cause before either Hon. James Gibson, Hon. James H. Slover, Hon. W. B. Teasdale, Hon. Shannon C. Douglass, or Hon. Andrew F. Evans, judges of division 1, 2, 3, 4, and 5, respectively, of the circuit court of Jackson county, Missouri, because said judges and each of them is prejudiced against said plaintiffs and each of them, and because the opposite party, defendants herein, have an undue influence over the minds of each of said judges. Third. Because the inhabitants of said county are prejudiced against each of the said plaintiffs. Fourth. Because the said defendants herein, the opposite party herein, have an undue influence over the inhabitants of the said county. That affiants obtained their information and knowledge of the exercise of the undue influence of the said defendants over the minds of the said judges and each of them, on the 25th day of June, 1903. That affiants obtained their information and knowledge that the opposite party, the defendants herein, have an undue influence over the inhabitants of the said county on the 25th day of June, 1903. Affiants further state that they have received on this 25th day of June, 1903, after 4 o'clock p. m., further and additional evidence and information of each of the causes alleged as aforesaid in this application for a change of venue in this cause, and that they believe if said cause is tried in said county that it would be impossible for any of the plaintiffs in this cause to have a fair and impartial trial in said cause...