Priddy v. Mackenzie
| Decision Date | 29 June 1907 |
| Parties | PRIDDY et al., Plaintiffs in Error, v. MACKENZIE |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court. -- Hon. James Gibson, Judge.
Reversed and remanded.
Samuel P. Forsee, Wm. C. Forsee and H. H. McCluer for plaintiffs in error.
(1) The conclusions of law drawn by the court absolutely ignore the rulings of this court in the Linvill-Greer case, where every salient and dispositive fact herein involved was determined by Division Two of this court. Linvill v. Greer, 165 Mo. 380. (2) When the fact developed at the trial of the case that Judge Gibson had been of counsel and the firm to which he belonged had passed judgment on the title in question, he was disqualified to proceed further in the trial of the cause. The development of that fact nullified any further procedure taken by respondent in the cause. Tearce v Atwood, 13 Mass. 339; Stockwell v. Town Board, 22 Mich. 345; Gravel Min. Co. v. Keyser, 58 Cal 315; Hillborne v. Campbell, 23 P. 122; East Rome Town Co. v. Cathran, 81 Ga. 367; Moses v Julian, 45 N.H. 58; Davis v. Allen, 11 Pick. 466; Templeton v. Giddings, 12 S.W. 851. (3) The refusal by Judge Gibson to allow plaintiffs a change of venue was reversible error. The cases should have been sent for trial to some other county. If we are mistaken in this they should have at least been transferred to some other division of the same court. State v. Flourney, 160 Mo. 324; State v. Lehman, 182 Mo. 459; Newcomb v. Railroad, 182 Mo. 713; Dawson v. Dawson, 29 Mo.App. 521; State ex rel. v. Fort, 178 Mo. 519; Lacey v. Barrett, 75 Mo. 469. (4) The court erred in trying all the cases as if consolidated. They were consolidated in substance if not in fact. Sec. 750, R. S. 1899. The court's failure to make an order consolidating the cases was an evasion of said section 750, and an unwarranted deprivation of plaintiffs' right to have a separate trial of their cases. At common law, before there could be a consolidation of actions it was necessary that there be the same plaintiffs. Second, the same defendants. Third, the action must be such as can be joined. 4 Ency. Pld. & Prac., 674; Knight v. Ogden, 3 Tenn. Ch. 409. In England the right to consolidate is denied to exist in the chancery court. Foreman v. Blake, 7 Price 654. When the same defense does not apply, consolidation will be refused. 4 Ency. Pld. & Prac., 679. Neither by common law nor under the statutes can cross-actions be consolidated. Harns v. Sweetland, 48 Mich. 110; 4 Ency. Pld. & Prac., 696; Story, Eq. Pl. (6 Ed.), sec. 287; Knight Bros. v. Ogden Bros., 6 C. L. J. 27.
C. O. Tichenor, O. H. Dean and Lathrop, Morrow, Fox & Moore for defendant in error.
(1) The court properly overruled the application for a change of venue. Secs. 821-822, R. S. 1899; 3 Am. and Eng. Ency. Law (2 Ed.), 320; Bank v. Hoeber, 88 Mo. 37; State to use v. Matlock, 82 Mo. 455; Wolff v. Ward, 104 Mo. 127; Railroad v. Holladay, 131 Mo. 440; Bartley v. Railroad, 148 Mo. 124; Cole v. Armour, 154 Mo. 333; McCormick v. Railroad, 154 Mo. 191; Feary v. Railroad, 162 Mo. 75; State v. Blitz, 171 Mo. 530; State v. Lehman, 182 Mo. 424; State ex rel. v. Evans, 184 Mo. 632; Eudaley v. Railroad, 186 Mo. 399; Guy v. Railroad, 197 Mo. 174; Priddy v. Boice, 99 S.W. 1055; State ex rel. v. Lubke, 29 Mo.App. 555; Smith v. Railroad, 31 Mo.App. 135; Summers v. Ins. Co., 45 Mo.App. 46; Walker v. Evans, 98 Mo.App. 301. (2) Judge Gibson was not disqualified to try the case. Secs. 819, 1679, R. S. 1899; 17 Am. and Eng. Ency. Law (2 Ed.), 733, 741; 23 Cyc., 576, 578, 596; Bowman's case, 67 Mo. 146; State v. Moore, 121 Mo. 514; DeHatre v. Edmunds, 98 S.W. 744; Bank v. Fitzsimons, 2 Binn. (Pa.) 454; Taylor v. Williams, 26 Tex. 583; Railroad v. Ryan, 44 Tex. 426; New Odorless Sewerage Co. v. Wisdom, 30 Tex. Civ. App. 244; King v. Sapp, 66 Tex. 519; Railroad v. Mackney, 83 Tex. 410; Cleghorn v. Cleghorn, 66 Cal. 309; Wolfe v. Hines, 93 Ga. 329; In re Nevitt, 117 F. 448; Keefe v. Bank, 177 N.Y. 305; Ex parte State Bar Assn., 92 Ala. 113; Ellis v. Smith, 42 Ala. 349; Peck v. Freeholders of Essex, 20 N. J. L. 457; Grigsby v. May, 84 Tex. 240; Oakland v. Oakland Water Front Co., 118 Cal. 249; Foreman v. Marianna, 43 Ark. 324; State ex rel. v. Maio, 58 A. 173; State ex rel. v. Woodson, 86 Mo.App. 253; Heinilen v. Heilbron, 97 Cal. 101; Philadelphia v. Cox, 64 Pa. St. 169. (3) The court committed no error in trying the cases together. Thompson, Trials, sec. 210; Ins. Co. v. Hillmon, 145 U.S. 285; Den v. Fen, Halst. 335; Witherlee v. Ocean Ins. Co., 24 Pick. 67; Jackson v. Stiles, 5 Cow. 282; Springfield v. Sleeper, 115 Mass. 587; Wiede v. Ins. Co., Fed. Cas. No. 17617.
The plaintiffs instituted this suit in the circuit court of Jackson county, Missouri, 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 ask 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 10th, 1892, and Elizabeth Linville died November 3rd, 1892. Martha Jones occupied the dower land until death, and on May 5th, 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 interests, 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 descendants 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 one to ten, 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 5th, 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 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 thirty-year Statute of Limitations.
Third: That Nancy Priddy and Elizabeth Jones were, each, over twenty-one years of age on May 5th, 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, and
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.
Sixth: And that the deed, dated May 5th, 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 5th, 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 number one of said court, which was presided over by Judge Gibson, and the other seven were pending in the other divisions thereof. On June 25th, 1903, all of the cases, over plaintiffs' objections, were transferred to division one of said court; that on June 26th, the next day, plaintiff filed an application for a change of venue in each case. The one filed in this case, formal parts omitted, was as follows:
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