Sanders v. Dixon

• Decision Date: 17 October 1905
• Citation: 114 Mo. App. 229,89 S.W. 577
• Parties: SANDERS et al. v. DIXON et al.
• Court: Missouri Court of Appeals

89 S.W. 577

114 Mo. App. 229.

SANDERS et al. v. DIXON et al.

St. Louis Court of Appeals. Missouri.

October 17, 1905.

1. VENUE—CHANGE—PREJUDICE OF JUDGES— STATUTES—CONSTRUCTION.

Rev. St. 1899, § 832, provides that the word "county," as used in the article relating to changes of venue, shall embrace the city of St. Louis, and changes shall be awarded from the courts of said city as if it were a county; but, if the change be granted from any court of said city, the cause shall be sent to some other court of record therein, unless the application is based on grounds applicable to all the judges of the courts therein, and that the several divisions of the circuit court in the city shall be regarded as separate courts within such section. Held that, where a change of venue was applied for in one division of the circuit court of St. Louis because of alleged prejudice of all the judges in such court, then consisting of nine divisions and judges, the applicant was not, as of right, entitled to have the case sent outside the city, but the trial judge to whom the application was made was bound to determine whether the judges of the other divisions were in fact prejudiced, and he alone had power to disqualify them.

2. INJUNCTION—COVENANTS IN DEED — BREACH—RELIEF PARTIES.

Where, in a suit to restrain the erection of a building alleged to constitute a violation of a building covenant running with the land, no temporary writ was in force, a contractor erecting the building was not a necessary party, and it was improper for the court to render a final decree against him, requiring the building to be removed.

3. SAME.

Where, in a suit to restrain the erection of a building on land alleged to constitute a violation of a building covenant running therewith, defendant took title by conveyance from the previous owner, he was a proper party, notwithstanding he testified that he was a straw man in the transaction, and did not know who the real owner was.

4. SAME.

Where, in a suit to restrain the alleged violation of a building covenant, defendant H. was concerned about the building, was on the premises while it was in process of erection,

and, on being notified not to proceed, declared that he intended to disregard the restrictions and assumed to act as owner by refusing an offer for the property, a finding that he was a real party in interest was proper.

5. JUDGMENT—PARTIES AFFECTED—MORTGAGE PENDENTE LITE.

Where the payees of a note, secured by a deed of trust on certain property in controversy, did not advance the proceeds until after the institution of a suit for the alleged violation of a building covenant by the erection of a building thereon and until after notice thereof, a subsequent assignee of the note and deed of trust acquired his interest, subject to any decree that might be rendered in such suit, and was not a necessary party thereto.

6. APPEAL—RECORD—WITHDRAWAL OF EXHIBITS —STIPULATIONS.

Where certain photographs and exhibits were withdrawn from the record by stipulation, neither party was entitled to oppose a review of the case because such exhibits were not in the transcript.

7. SAME.

A stipulation eliminating certain deeds, introduced as exhibits, and photographs from the appeal record, did not preclude the parties from attaching to the transcript as exhibits the plans of a building in controversy, submitted to a public building department, which plans had been introduced in evidence at the trial.

8. SAME—RECORD—SCOPE OF REVIEW.

Where, in a suit to restrain the alleged infringement of certain building covenants, the parties stipulated that deeds introduced as exhibits should be omitted from the appeal record, and that in lieu thereof it was admitted that plaintiffs were the owners of the property as alleged by virtue of the conveyances stated in the petition, subject to the restrictions averred therein, and that defendant D. derived title from a common source with that of plaintiffs, subject to restrictions set out in plaintiffs' petition, the appellate court was confined to the averments of the petition in ascertaining the character and duration of the covenants in controversy.

9. COVENANTS—ENFORCEMENT—BUILDINGS.

Where, in a suit to restrain an alleged breach of a building covenant, the parties stipulated that plaintiffs and defendant D. derived their titles from a common source and were mutually subject to the restrictive covenants alleged, plaintiffs were entitled to enforce the same, without regard to whether the covenants ran with the land.

10. SAME—CONSTRUCTION—"DWELLING HOUSE."

A double two-story building, comprising four flats under a single roof, with a division wall running through it on the center line of the lot from front to rear and from cellar to roof, on either side of which was a bay front, intended for the occupation of several families, was not "one dwelling," within a restrictive building covenant providing that not more than "one dwelling" should be erected on each lot.

11. INJUNCTION—MEASURE OF RELIEF.

Where, in a suit to restrain the alleged breach of certain restrictive building covenants, no restraining order was in force pending suit, and the building which was erected, though constituting a breach of the restrictions, could be so modified with slight expense as to comply with the covenants, a judgment directing a removal of the building without permitting defendants to remodel the same was erroneous.

12. SAME—TERMINATION OF COVENANTS.

In case of lapse of certain building covenants pending suit for an alleged violation thereof, complainants were not entitled to an alteration of the building, but could only recover damages for violation of the restriction.

Appeal from St. Louis Circuit Court; Dan'l D. Fisher, Judge.

Suit by Lon Sanders and others against Charles Dixon and others. From a decree in favor of complainants, defendants appeal. Reversed.

Kidd & Davis, for appellants. Randolph Laughlin, for respondents.

Opinion.

GOODE, J.

1. This case was instituted in the circuit court of the city of St. Louis, and was assigned for trial to Division No. 1, presided over by Judge Warwick Hough. Before filing an answer Charles Dixon, one of the three defendants, presented an application for a change of venue, alleging that he could not have a fair and impartial trial before the judge of that division on account of the judge's prejudice, and alleging, further, that he could not have a fair and impartial trial in the other divisions of the circuit court of the city of St. Louis on account of the prejudice of the judges of said court against him. The application was, in fact, one for a change of the venue to some court outside the city of St. Louis. Judge Hough, of Division No. 1, granted the change from his division, but refused to send the case outside the city, and ordered it transferred to Division No. 5 of the circuit court of the city, presided over by Judge Fisher. An exception was saved to the refusal to award a change to some outside court, and this ruling is assigned for error and demands first attention. The application for the change was made on the 4th day of November, 1901, when, of course, the provisions in regard to changes of venue contained in the Revised Statutes of 1899 were in force. The article on change of venue contained in those statutes is declared applicable to the city of St. Louis, and it is provided that the word "county," used in the article, shall be construed to embrace that city, and changes of venue be awarded to and from the courts of that city as if it was a county. It is further provided that, if a change is granted from any court of record in the city, the cause shall be sent to some other court of record therein, "unless the application is based upon grounds applicable to all the judges thereof or to all the inhabitants of said city." Rev. St. 1899, § 832. On the clause of the statute just quoted the defendants found their contention that it was the duty of the judge of Division No. 1 of the circuit of the city of St. Louis to grant a change of venue to an outside circuit, as Dixon alleged in his application prejudice on the part of the judges of the other divisions of the St. Louis circuit court which would prevent a fair trial before any of them, thus showing that the application for a change from Judge Hough was based on grounds applicable to all the judges of the circuit court of St. Louis. The policy of the Legislature, as shown by several enactments on the subject, has been to require causes pending in one of the courts of record of the city of St. Louis to be tried in that city, instead of being transferred to some outside circuit on change of venue. The Statutes of 1865 provided that no change of venue in civil cases should be allowed in any court in St. Louis county to any other county. Gen. St. 1865, c. 159, § 13. At that time the city of St. Louis was in St. Louis county, and for that reason the wording of the section was as stated. By the Session Acts of 1865-66 it was provided that no change of venue should be allowed from the circuit court of said city because of the disqualification of any one of the judges thereof, but only in case two of the judges were disqualified. At that time there were three judges of the circuit court of the city of St. Louis, who sat at stated intervals in general term and had power to review points of law decided at special terms. Acts 1865-66, p. 72, § 7. In the Revised Statutes of 1879 it was said the word "county," as used in the article on changes of venue, embraced the city of St. Louis, and changes might be awarded to and from the courts of St. Louis as if it were a county. Rev. St. 1879, § 3742. The section last cited was amended in 1881 so as to read as it now appears in section 832 of the Revised Statutes of 1899; that is to say, the amendment provided that, if a change of venue was asked from a court in the city of St. Louis, the cause should be sent to some other court of...