Sears v. Norman

• Decision Date: 12 October 1976
• Docket Number: No. KCD,KCD
• Parties: James M. SEARS, a Individual, et al., Plaintiffs-Respondents, v. John Phillip NORMAN et al., Defendants-Appellants. 27395.
• Court: Missouri Court of Appeals

Page 300

543 S.W.2d 300

James M. SEARS, a Individual, et al., Plaintiffs-Respondents, v. John Phillip NORMAN et al., Defendants-Appellants.

No. KCD 27395.

Missouri Court of Appeals, Kansas City District.

Oct. 12, 1976.

Motion for Rehearing and/or Transfer Denied Nov. 4, 1976.

David A. Oliver, Columbia, for defendants-appellants.

William D. Powell, Columbia, for plaintiffs-respondents.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

This suit seeks a declaration of the existence of a public alley and to enjoin the defendants from interfering with the public right of passage. After trial without a jury, the court found for the plaintiffs. Defendants appeal.

The property in question lies within a city block in Columbia, Missouri, bounded on the east by Ann Street, on the west by Williams Street, on the north by Amelia Street and on the south by Hinkson Street. The alley claimed by plaintiffs runs east and west from Ann to Williams, midway between the rear of residential structures facing Amelia and Hinkson. Defendants Mr. and Mrs. Norman and Mrs. Loesing own property on either side of the alleged alley at the extreme west end thereof next to Williams Street. They claim that the 'alley' really constitutes a private drive for their sole benefit, and they blocked the passageway at their eastern property line by hauling in a load of dirt and erecting a fence.

Plaintiffs own property adjacent to the alley and lying east of the point at which the alley had been blocked by defendants. They filed this suit to challenge the legal right of the defendants to shut off the passageway. The petition states in part that it is brought as a class action, that the named defendants have been fairly chosen and adequately and fairly represent the whole class and that the defendants are being sued in a representative capacity.

The plaintiffs placed in evidence a plat of the northwest portion of the city block in question, this area being named J. C. and J. W. Schwabe Subdivision of Lot 9 of Stephens first Addition to the town (now City) of Columbia, Mo. That plat shows a 15 strip south of the Norman property (7 1/2 of which is on Norman's lot) which is designated as a 'private alley.' ¹ None of the parties introduced any plat of any subdivisions further to the east. The plat of Stephens first Addition does contain lines between Ann and Williams Streets south of Lots 9, 10 and 11, which might have been intended to reflect some sort of alley; but this plat contains no designation of that as an alleyway and no oral testimony explains or amplifies these markings. Nor has there been any showing, documentary or by testimony, as to the intended scope or the beneficiaries of the private alley which was shown on the Schwabe Subdivision plat. Plaintiffs make no reliance on the platted private alley as a source of rights, and defendants do not admit the right of anyone to use this passageway under any limited private easement. This case therefore presents no issue as to what rights, if any, accrued under what may have been originall some private right of way.

Instead, the evidence tendered by the parties focuses on the nature, extent and duration of use of an alley by the general public between Ann and Williams Streets. Plaintiffs' evidence tended to show general and continuous use by all members of the public commencing at least as early as the middle 1930's. Their evidence also tended to show that this use was made as a matter of right without any thought that permission was necessary from anyone. Plaintiffs also offered testimony that the alleyway has been maintained by the City in recent years just as other public alleys in the City, that the alley has been patrolled by City police, and that it was used for garbage collection. Defendants did not deny that use had been made as an alleyway, but they attempted to picture this as relatively minor and without any participation by the City. Their principal claim is that at all times use of the alleyway by parties other than themselves was purely permissive, not adverse under claim of right.

On this appeal, defendants raise five points. Their points 1 and 5 challenge the status of this proceeding as a class action, and both of those points will be discussed together. Points 2 and 4 challenge other procedural aspects of the case. Point 3 comes to grips with the underlying factual issue and will be discussed last in order.

I.

Defendants contend that the trial court erred in permitting this as a class action because: a) there is no showing that defendants were fairly chosen as representatives of the class; b) plaintiffs have not shown that it was impracticable to join all members of the class; and c) the facts do not show any justiciable controversy between plaintiffs and a class alleged to be represented by defendants.

Without the necessity of considering the first of those two objections, defendants' complaint against this as a class action is justified on their third ground stated above. The evidence in this case fails to show that anyone other than the named defendants has any objection to the public use of an alleyway between Ann and Williams Streets. The blockage of the alleyway was done solely by the named defendants, and was for the purpose of cutting off and protecting only their own property at the extreme west end of the alley. So, wholly apart from whether it was practicable for plaintiffs to bring all members of the alleged class into court and whether defendants fairly and properly represented all of the owners of land abutting the alley, this is not a proper situation for a class action.

Nevertheless, this case could properly proceed against the named defendants in their individual capacities and the case should now be considered on that basis. While the body of the petition states that the action is brought as a class action, the prayer asks relief against the defendants individually as well as against the class of persons of which the defendants are claimed to be representative; and specifically the prayer asks that 'the named defendants' be required to remove the obstructions from the alleyway. The prayer may be considered in ascertaining the type of action attempted to be set forth by the pleader. O'Donnell v. Baltimore & O.R. Co., 324 Mo. 1098, 26 S.W.2d 929, 935 (1930); King v. Guy, 297 S.W.2d 617, 624 (Mo.App.1957); Duvall v. Stokes, 270 S.W.2d 419, 423 (Mo.App.1954); Hilderbrand v. Anderson, 270 S.W.2d 406, 411 (Mo.App.1954); Meisel v. Mueller, 261 S.W.2d 526, 533 (Mo.App.1953).

So construed, plaintiffs were suing defendants in their individual as well as in an alleged representative capacity. Even though the suit could not properly proceed as a class action, the court could properly proceed to rule the rights of the parties looking at defendants in their capacities as individual defendants. State ex rel. St. Louis F.F. Ass'n Loc. No. 73 v. Stemmler, 479 S.W.2d 456 (Mo. banc 1972).

If there could be doubt as to the construction of the petition as one undertaking to plead a cause of action against defendant individually, as well as against them in a representative capacity, that doubt becomes immaterial in view of the fact that the evidence in the case was all directed against defendants' actions as individuals, acts which were done by them solely in their own behalf and for the exclusive benefit of their own special properties at the west end of the alley. Furthermore, the defense offered by defendants was peculiar to their own property. The petition, if not otherwise susceptible to construction as being against defendants individually, has been automatically so amended to conform to the proof. Rule 55.33(b).

In view of the fact that this case was not properly one against a class, the judgment should be modified by eliminating that portion of the injunction order which purports to operate against 'the class of persons of which these defendants are representative.' The declaratory portion of the judgment need not be modified, because under Rule 87.04 it will not affect the rights of any landowners who were not named parties to the proceeding. In effect, the declaration in the judgment of a public alley serves essentially as the predicate for the injunctional order.

II.

Defendants object to the manner in which judgment was entered in this case. They say that on February 1, 1974, the trial court 'entered judgment' as follows: 'Court finds issues for plaintiffs and against defendants. Judgment in accordance with prayer of petition. Costs taxed against defendants.' Subsequent to that, defendants filed motion for new trial, which was overruled, and defendants then filed their notice of appeal on May 24, 1974. Thereafter, the trial court requested the attorneys for plaintiffs to prepare a formal judgment entry. In response to that request, plaintiffs' attorneys prepared a more elaborate entry which included a legal description of the alleyway, taken from the prayer of the petition, and they presented this expanded judgment entry to the clerk of the court. By letter dated September 13, 1974, defendants' attorneys objected to this proposed judgment as being unauthorized. On September 16, 1974, plaintiffs' attorneys orally requested that the proposed judgment filed be withdrawn. Nevertheless, the trial judge signed the formal order as of February 1, 1974, and approved the transcript with that formal order included therein.

Defendants object to this entry of the judgment in September 1974 as being beyond legal authority. In their brief they argue:

'The 'judgment' in dispute was not a nunc pro tunc order to correct some clerical mistake in entering judgment but was an attempt to correct or modify an action previously taken. * * * The action of the Court in entering a purported judgment more than three months after it lost jurisdiction over the action was void and of no effect.'

Plaintiffs attempt to answer this argument by relying...