Rodney v. Gibbs

• Decision Date: 16 July 1904
• Citation: 82 S.W. 187,184 Mo. 1
• Parties: RODNEY et al. v. GIBBS et al., Appellants
• Court: Missouri Supreme Court

82 S.W. 187

184 Mo. 1

RODNEY et al. v. GIBBS et al., Appellants

Supreme Court of Missouri, Second Division

July 16, 1904

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.

Affirmed.

H. S Shaw and J. R. Young for appellants.

(1) (a) There is no rule of law and there are no cases that hold that a plaintiff can abate a defense in an action or in actions pertaining to possession of real estate. (b) In order to abate an action on the ground of another action pending, the subject-matter and parties must be the same. If the parties are reversed the abatement should not be sustained. 42 L. R A. 450. (c) If different proofs are required to sustain the two actions the judgment in one is no bar to the other. Warder v. Henry, 117 Mo. 541; Garland v Smith, 164 Mo. 22; Callahan v. Davis, 125 Mo. 35. The two causes of action were not the same. One party is added. Several parties are dropped. The positions of plaintiff and defendants are changed, and the distinct allegation is added to the answer that did not appear in first petition, that the money with which Whitwell, the common source of title, purchased the real estate in question, belonged to defendant Elizabeth Gibbs. (d) The grounds upon which courts proceed in the abatement of subsequent suits is that they are unnecessary and are therefore deemed vexatious and oppressive. But the modern practice is not to infer, as a matter of law, that the subsequent suit is vexatious and unnecessary from the mere fact of the pendency of a former suit between the same parties, but to proceed upon inquiry into the actual circumstances of the two cases and then determine as a matter of fact whether the subsequent suit is vexatious. State ex rel. v. Dougherty, 45 Mo. 297; Jacobs, Admr., v. Lewis, 47 Mo. 344; Warder v. Henry, 117 Mo. 530; Bernicker v. Miller, 44 Mo. 102. (2) (a) Suits affecting real estate must be brought in the county where the real estate is situated. R. S. 1899, sec. 564; Vogelsmier v. Prendergrast, 137 Mo. 271; Ensworth v. Holly, 33 Mo. 371; Gregg v. Railroad, 48 Mo.App. 499. (b) A judgment in a case wherein the court had no jurisdiction is void and may be attacked collaterally. Church v. McElhiney, 61 Mo. 543; Collier v. Wilson, 56 Mo.App. 42; Hutchinson v. Shelly, 133 Mo. 413; State ex rel. v. Baker, 129 Mo. 487; Hope v. Blair, 105 Mo. 92. (c) The Cape Girardeau court of common pleas could not render the judgment relied upon by respondents either as a circuit court or as a probate court. The attempted proceedings and judgment are void. All trials, proceedings and orders concerning an estate must be in the probate court of the county where letters testamentary are granted and the estate is in process of administration. R. S. 1899, sec. 5. But the judgment purports to be against a dead person and the deed purports to convey the interest of a dead person and her administrator in the real estate in controversy. "A deed made pursuant to a sale under execution issued on a judgment in an action against a person who was dead at its institution conveys no title." Childers v. Schantz, 120 Mo. 305. Any order changing the venue of Gibbs v. Whitwell to Cape Girardeau court of common pleas was void. A void order is equivalent to no order. Jurisdiction must exist or be conferred by law. Even the consent of the parties could not confer it. Bray v. Marshall, 66 Mo. 123; State v. Stein, 115 Mo. 479; Collier v. Wilson, 56 Mo.App. 422; Ewing v. Brooks, 69 Mo. 50; State ex rel. v. Baker, 129 Mo. 487. The Cape Girardeau court of common pleas acquired no jurisdiction by virtue of the answer filed by the attorney who purported to be the attorney of the administrator. The probate jurisdiction sought to be exercised by the Cape Girardeau court of common pleas belonged to the Stoddard county probate court. R. S. 1899, sec. 5. The Cape Girardeau court of common pleas was established by the Act of 1851, and all its powers and jurisdiction are conferred by that and amendatory acts. R. S. 1899, pp. 2579 to 2582. The granting of a change of venue from another county to Cape Girardeau county is governed by the provisions of section 19 of the act.

Wilson Cramer for respondents.

(1) The claim of the original plaintiff, Charles E. Rodney, to the premises in controversy rests on the sheriff's deed under execution, issued upon the judgment of the Cape Girardeau court of common pleas in the case of Gibbs v. Whitwell, which has been affirmed since the trial of this cause in the court below. Gibbs v. Whitwell, 164 Mo. 387. (2) The suit of Gibbs v. Whitwell originated in the circuit court of Stoddard county and was sent on change of venue to the Cape Girardeau court of common pleas. Neither in that court, nor in this court on appeal, did the plaintiff deny or question the jurisdiction of the common pleas court to hear and determine the cause. When Rodney in the present action of ejectment seeks to reap the benefit of his judgment of foreclosure, Elizabeth Gibbs and her codefendant for the first time raise the objection that the Cape Girardeau court of common pleas was without jurisdiction, and that its judgment is therefore void. (3) By the amendatory Act of 1853 the common pleas court is given "concurrent original jurisdiction in all civil actions at law with the circuit court." It has, therefore, jurisdiction of the class of cases to which the case of Gibbs v. Whitwell belongs; in other words, jurisdiction of the subject-matter. (4) Whatever may be the effect of section 19 of the Act of 1853, providing that when causes are sent from the circuit court of some other county to Cape Girardeau county they shall be awarded and transferred to the circuit court, defendants here are in no position to invoke its provisions to nullify the judgment of the common pleas court. That court having had jurisdiction of the subject-matter, and Elizabeth Gibbs, the plaintiff, having agreed in the circuit court of Stoddard county that the case should be sent on change of venue to the Cape Girardeau court of common pleas, and having appeared in that court and proceeded to trial without objection, she is now estopped from denying the jurisdiction.

OPINION

GANTT, P. J.

This is an ejectment for certain lands in Stoddard county, and from a judgment in favor of Charles L. Rodney, the original plaintiff herein, the defendants prosecute this appeal. Since the appeal has been lodged in this court, Charles L. 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 eleventh 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 deeds 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...