Scott v. Taylor

• Decision Date: 30 November 1910
• Citation: 231 Mo. 654,132 S.W. 1149
• Parties: SCOTT v. TAYLOR et al.
• Court: Missouri Supreme Court

132 S.W. 1149

231 Mo. 654

SCOTT v. TAYLOR et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

Rehearing Denied December 23, 1910.

1. PLEADING (§ 64)—"DUPLICITY"—DEFINITION OF—"MULTIFARIOUSNESS."

The term "duplicity," as used in Rev. St. 1899, § 613 (Ann. St. 1906, p. 645), providing that duplicity in pleading is a substantial objection and any petition or other pleading found subject to such objection shall on motion be stricken out, is synonymous with "multifariousness," and means improper joinder in a single bill of independent matters. It also consists of a joinder of different grounds of action to enforce a single right (quoting Words and Phrases, vol. 3, p. 2267).

2. ACTION (§ 38)—SINGLE AND ENTIRE CAUSE OF ACTION.

Complainant alleged: That in 1882 he mortgaged lands to M., and that thereafter defendant A. bought the note on an agreement that he would carry the loan for complainant, until some indefinite time when the land might be sold and the excess of the proceeds over the debt divided. In violation of the agreement, about three months later, A. foreclosed the deed of trust and bought the property himself. That the foreclosure was void for want of sufficient publication. That A. spent money for taxes, the amount of which complainant did not know, and that there had been a running account between them which ought to show a balance in complainant's favor. In 1901 defendant A. mortgaged the property. That at another time complainant deposited with A. diamonds worth $2,200 which A. had converted to his own use. That at the time not stated complainant performed legal services for A. as his attorney, for which he was indebted in the sum of $4,300, whereupon complainant prayed an accounting against A.; that he be allowed to redeem the land; that the deeds of trust be canceled; that the diamonds and legal services be brought into the accounting; and that complainant have judgment for such services and the diamonds. Held, that the petition erroneously attempted to unite in one count distinct matters against several defendants and several grounds of action ex contractu and ex delicto, and that the petition was objectionable for duplicity.

3. ACTION (§ 45)—CAUSES OF ACTION—JOINDER.

Distinct causes of action cannot be properly joined in the same petition.

4. APPEAL AND ERROR (§ 919)—PETITION—MOTION TO STRIKE OUT—ORDERS—PRESUMPTIONS.

Where motions were filed to strike out certain amended petitions because they were duplicitous and also because they were exact duplicates of the original, which had been stricken, and the court sustained the motion generally without stating the grounds, though it will not be presumed on appeal that the motion was sustained on both grounds, the ruling will be sustained if supportable on either ground.

5. JUDGES (§ 49)—DISQUALIFICATION—PREJUDICE.

A judge feeling or expressing himself as prejudiced against the personality of a litigant is not by that act disqualified to hear any portion of the litigant's cause.

6. JUDGES (§ 56)—CHANGE OF VENUE—PREJUDICE OF JUDGE—DUTY TO GRANT.

A petition having been stricken for duplicity, complainant, having been given leave to amend, filed another petition, to which a similar motion was made. The court after hearing the motion and passing thereon stated that, while he would pass on the motion, he would not hear the main issues in the case because he was prejudiced against the plaintiff. He thereupon struck out the amended petition and gave plaintiff more time to file another amendment and transferred the case to the division of another judge. Held that, complainant having made no application for a change of venue because of the prejudice of the judge, the court did not err in omitting to send the motion to another judge for hearing.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Suit by William J. Scott against Frances Taylor and others. From an order striking out plaintiff's amended petition and dismissing the case without prejudice, plaintiff appeals. Affirmed.

The plaintiff prosecutes this appeal from an order and judgment of the circuit court of Jackson county, striking out three petitions filed in the cause by him in compliance with sections 613 and 623, Rev. St. 1899 (Ann. St. 1906, pp. 645, 648), and without prejudice dismissing plaintiff's case.

Formal parts omitted, the original petition stricken out reads as follows:

"Now comes plaintiff herein and for his cause of action against defendants says:

"First. That on or about the 1st day of June, 1893, plaintiff was indebted to one William H. McLellan in the sum of $2,750 on a certain promissory note, dated the 5th day of May, 1888, and bearing interest at 10 per cent. per annum on its face, and secured by deed of trust of even date, recorded in the office of the recorder of deeds of Jackson county, Mo., on the 5th day of May, 1888, in Book B-307, page 356, on the following described real estate, situate, lying, and being in the county of Jackson and state of Missouri, to wit: Commencing at a point 268.5 feet east and 225 feet south of the northwest corner of a certain 6½-acre tract of land in the northwest quarter of section 10, township 49, range 33, conveyed by Cynthia M. Clasby and husband to William J. Scott by deed dated April 10, 1882, and recorded in the recorder's office of Jackson county, Mo., at Kansas City, in Book B-75, p. 147; thence south 75 feet on the line of and parallel with the west line of Chestnut avenue as established by an ordinance of the city of Kansas; thence west 133 feet to a point; thence north and parallel with the aforesaid line running south 75 feet; thence east and parallel with the aforesaid line running west 133 feet to the place of beginning. That in consideration of the fact that property and real estate had greatly depreciated in value about the 1st day of June, 1893, and that plaintiff had paid the said William H. McLellan large sums in interest upon the note secured by deed of trust upon the property aforesaid, said McLellan about said date offered to turn over the note and security aforesaid to plaintiff upon the receipt of the sum of $1,000, that plaintiff thereupon procured defendant F. G. Altman to advance the $1,000 for him and to take over the note and security aforesaid upon the following terms and conditions then and there agreed upon between them, namely: That said F. G. Altman should advance plaintiff the $1,000 necessary to take up the note and mortgage of McLellan, which were to be held by said Altman as security for such advances and other expenses incurred by him in protecting the property. That, as soon as the property had recovered from the depression and panic then existing, if plaintiff had not repaid to said Altman the aforesaid $1,000 with 8 per cent. interest and all taxes paid by him that the property should be sold when the market price was mutually satisfactory, and from the proceeds of the sale said F. G. Altman should first receive the $1,000 advanced and expenses incurred in connection with said property, together with interest at 8 per cent. per annum upon the entire sum from the dates of the payment thereof.

"Second. From the remaining proceeds of sale one-half, or as much of said half as may be necessary, was to be applied to the payment of any amount which might then be due from plaintiff to said F. G. Altman upon other accounts. All the balance remaining to be the property of plaintiff. But shortly after said date, said Frank G. Altman attempted to advertise and sell the property aforesaid under the deed of trust aforesaid, and a trustee deed purporting to convey the property above described was made on the 23d day of September, A. D. 1893, recorded in Book B-543, p. 418, in the office of the recorder of deeds of Jackson county, Mo., at Kansas City. That the said trustee's deed executed in pursuance of such attempted sale by said trustee and the affidavit of publication attached thereto and made a part thereof shows on its face that the notice required by the trust deed aforesaid to be published for 30 days in a newspaper printed and published in the city of Kansas was published for 23 days and no more, and by reason thereof said sale and trustee's deed are wholly without force and effect to convey the equitable title to said property to defendant F. G. Altman, or bar the plaintiff's equity of redemption in and to the property above described. That plaintiff has for eight years last past urged defendant F. G. Altman, on many occasions, to furnish plaintiff an accounting of the amount paid out by him, together with the amount of taxes and other expenses incurred by him, in and about the preservation of the aforesaid property, but that defendant F. G. Altman, though frequently promising to do so, has wholly failed and refused to furnish any such statement. That plaintiff does not know and has no means of knowing what the amounts of said disbursements are, and said F. G. Altman refuses to cancel said note or satisfy said deed of trust, although plaintiff has long since paid the same and performed all the conditions required by said deed of trust, and said Altman refuses to convey said property to plaintiff although requested to do so. Plaintiff further states that there has been a running account between him and defendant F. G. Altman, and that the same has been running over several years, that he believes and charges the facts to be that upon a settlement of said account a large balance would be found in his favor.

"Wherefore, plaintiff hereby prays an accounting and hereby tenders to defendant F. G. Altman the amount, if any, that may be found due him upon the full accounting of the amount due and owing by plaintiff after allowing all just credits and offsets. Wherefore, plaintiff prays enforcement of his equity of redemption that said notes and deed of trust be extinguished and satisfied, and that the legal and equitable title to the property above described be...