Rodney v. Gibbs

Decision Date10 May 1904
Citation82 S.W. 187,184 Mo. 1
PartiesRODNEY et al. v. GIBBS et al.
CourtMissouri Supreme Court

3. The amendatory act of 1853 (Laws 1853, p. 82) § 6, provides that "all causes in which a change of venue shall be awarded by the circuit court of any other county to the county of Cape Girardeau shall be certified and transferred to the circuit court as heretofore." Held that, though a suit in equity was erroneously venued from another county to the common pleas court of Cape Girardeau county, the appearance of all the parties and going to trial therein, submitting themselves to its jurisdiction, without raising any question as to its jurisdiction over the subject-matter, was a waiver of the question, rendering its decree valid as against a collateral attack.

4. The matters determined by a judgment constitute res judicata as to litigation between the same parties involving the same subject-matter, though the judgment is pending on appeal without supersedeas bond having been given.

5. Where a decree was rendered in a suit affecting a decedent's estate by a court which obtained jurisdiction of the cause as a case in equity and had all the powers of a court of chancery to do complete justice and give the relief it did, a contention that, as the proceedings were not brought in the probate court of the county where the letters testamentary were granted, the judgment was void, is untenable.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by Louis L. Rodney and others against A. Chase Gibbs and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

H. S. Shaw and J. R. Young, for appellants. Wilson Cramer, for respondents.

GANTT, P. J.

This is an ejectment for certain lands in Stoddard county, and from a judgment in favor of Charles E. Rodney, the original plaintiff herein, the defendants prosecute this appeal. Since the appeal has been lodged in this court, Charles E. Rodney has died, and the cause has been revived in the name of his heirs at law, Louis L. Rodney and Rodney Whitelaw. The petition is in the statutory form. The answer is, first, a general denial, and, secondly, an equitable defense, wherein it is alleged, in substance, that Mrs. Gibbs is the daughter of the late W. H. Whitwell, deceased; that said Whitwell, for and in consideration of love and affection, and because said Whitwell had purchased said real estate with certain moneys of his said daughter, Mrs. Gibbs, did in his lifetime give said lands to her, and placed her in possession of the same about the year 1879, and that she and her husband have ever since been in the public and notorious possession of said lands under claim of title, and relying upon the gift from said Whitwell to them, and, believing their title was good, have made lasting and valuable improvements thereon; that said Whitwell, being threatened with financial embarrassment, about the year 1887 conveyed said lands to A. W. Hunt by deed duly recorded in Stoddard county; that A. W. Hunt afterwards conveyed said lands to Mary J. Whitwell by deed duly recorded; that said two deeds were wholly without consideration; that said Mary J. Whitwell did not make any claim to the lands so donated to defendants by said W. H. Whitwell, but that defendants continued to occupy, cultivate, and claim the same under claim of title, etc. Defendants aver that on the 11th day of August, 1894, without the knowledge of defendants, as aforesaid, the said Mary J. Whitwell conveyed said lands by deed of trust to secure one J. B. Dennis the payment of a debt due by her to said Dennis, and that in default of payment of said debt the right and title of Mary J. Whitwell in and to said property was sold by decree of court purporting to reform and foreclose said deed of trust, and bought by plaintiff, and that this constitutes plaintiff's claim of title; that when he bought plaintiff had full notice of defendants' open and notorious possession and claim of title, etc. Wherefore they prayed that said decree and deed of trust and sale thereunder might be set aside, and title to said lands vested in defendants, and for other proper relief, etc. For reply plaintiff pleaded, first, a general denial of the new matter in the answer; second, that all the matters set up in the answer were res judicata by reason of the judgment of the court of common pleas of Cape Girardeau county; third, that the cause of Elizabeth Gibbs v. A. S. Whitwell et al., in which the same issues were made, was still pending on appeal in the Supreme Court of Missouri, and undetermined. At the hearing of the cause plaintiff's pleas in bar and in abatement were first taken up, and in support thereof he offered in evidence the proceedings had in the case of Elizabeth Gibbs v. A. S. Whitwell et al., and the admission was made of record that the appeal in that cause was still pending and undetermined. The court sustained the plea that there was another action pending, and abated the equitable defense set up in the answer. At this stage defendants abandoned the case, and plaintiff proceeded with the introduction of evidence in support of his petition, introducing the decree of the common pleas court and his sheriff's deed. The possession and rental value were admitted. Upon this proof the court gave judgment for the plaintiff. In appellants' statement it is alleged that the court refused to hear any testimony on their behalf, but this is an error. Having abated the equitable defense, the court would not hear evidence upon it, and the defendants made no further offering. In due time the defendants filed the usual motions, which being overruled they appealed.

1. The plaintiffs' title to the lands in controversy rests on the sheriff's deed under execution issued on the judgment of the Cape Girardeau court of common pleas in the case of Elizabeth Gibbs v. A. S. Whitwell et al. which has been affirmed by this court since the judgment and appeal in this case. Gibbs v. Whitwell et al., 164 Mo. 387, 64 S. W. 110. It is obvious that, as W. H. Whitwell is the common source of title, and both parties claim through him, and as plaintiffs established their legal title through regular mesne conveyances of W. H. Whitwell's title to their ancestor, the original plaintiff herein, Charles E. Rodney, the judgment in his favor was clearly right, unless the equitable defense of defendants was improperly excluded. The correctness of the action of the circuit court in sustaining plaintiffs' plea in abatement to this equitable defense is presented for our determination on this appeal.

In plaintiffs' plea in abatement it was alleged that theretofore the defendant Elizabeth Gibbs, who is the wife of her codefendant A. Chase Gibbs, had brought her action against the plaintiff Charles E. Rodney and others, in which she pleaded as her cause of action the same facts set out in the answer in this cause, and prayed the same relief; that upon the trial of the issues in said cause in the Cape Girardeau court of common pleas, a court of competent jurisdiction, judgment was rendered by said court against the said Elizabeth Gibbs, and her petition dismissed; that said Elizabeth Gibbs was allowed an appeal to the Supreme Court of Missouri, where said cause was still pending and undetermined, and plaintiff pleaded the pendency of said cause in the Supreme Court on appeal as aforesaid in bar of the further defense in this cause, based on the matters set out in said amended answer as a defense to plaintiff's suit herein. As already stated, when the cause came on for trial the plaintiff proceeded first to offer evidence to sustain the issues on his pleas of res adjudicata and another action pending as to the matters alleged in the answer. He thereupon offered in evidence the entire record in the case of Mrs. Elizabeth Gibbs v. A. S. Whitwell et al., begun in the circuit court of Stoddard county, and removed on change of venue to the Cape Girardeau court of common pleas. To the introduction of this record defendants objected, because the replication did not set up facts sufficient to constitute a bar to said defense, or warrant the court in abating said defense. The court overruled the objection, and admitted the record, and it was further admitted that the said appeal was still pending. The circuit court held that the defense set up in the answer was the same cause of action as that pleaded and determined in Gibbs v. Whitwell et al., in the Cape Girardeau court of common pleas, and that the former suit was still pending at the time, and consequently sustained the plea in abatement, but held the matters therein adjudged were not res adjudicata. That the defense in this case is the same as that pleaded in the petition in Gibbs v. Whitwell et al. an inspection of the two pleadings conclusively establishes. The subject-matter and the parties litigant were the same in each court. It is of no moment whatever that other parties also were parties in either suit, as in each the real adversaries over the one subject-matter in suit were Mrs. Gibbs and Charles E. Rodney. The proofs required were the same in each, and the relief sought in each identical. But admitting that all this is true def...

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