State ex rel. Priddy v. Gibson

• Decision Date: 25 November 1904
• Citation: 83 S.W. 472,184 Mo. 490
• Parties: THE STATE ex rel. PRIDDY et al. v. GIBSON, Judge
• Court: Missouri Supreme Court

83 S.W. 472

184 Mo. 490

THE STATE ex rel. PRIDDY et al. v. GIBSON, Judge

Supreme Court of Missouri

November 25, 1904

Peremptory writ awarded.

W. C Forsee, H. H. McCluer and S. P. Forsee for relators.

(1) It was not only the duty of respondent to sign the bill of exceptions tendered him, if the same was found to be correct but it was equally his duty, if he thought the same was in any way imperfect, to correct it and then sign it. Page v. Clopton, 30 Gratt. 415; City v. Ballard, 126 Cal. 677; Swartz v. Nash, 45 Kan. 341. Respondent could not refuse to sign the bill, and refuse also to permit it to be corrected after he had indicated wherein it was incorrect. Relators had the right, after respondent indicated wherein he thought the same imperfect, to correct all that was necessary to be corrected, and then have same signed, and they were entitled to a reasonable time after the court pointed out wherein it was not true, to make it true. (2) The petition had two counts, one in ejectment, the other to determine title under section 650, Revised Statutes 1899. It is not a suit in equity. A statutory action is not a suit in equity. Daut v. Keen, 124 Mo. 105; St. Louis v Wetzel, 110 Mo. 264; Smith v. Finn, 77 Mo. 499; Ruby v. Coal & Mining Co., 21 Mo.App. 159; Seidel v. Cornwell, 65 S.W. 971. The answer in this case was not sufficient to convert the cause into an equitable proceeding. Section 650, under which the suit was brought, is exclusive and afforded full relief to all of the parties, both plaintiffs and defendants. Merriwether v. Love, 167 Mo. 514. (3) If this was a suit in equity, it would not have been necessary to have preserved the evidence by bill of exceptions, for this reason: the plaintiffs were seeking to bring the case to this court for the purpose only of determining the question as to whether or not the judge had the authority and right to try the case at all. That is a legal question. If, on the appeal, it was found that respondent had the authority to try the case, the judgment would have to be affirmed, as no exceptions were being saved to any of the proceedings during the trial; and if it was found, on such appeal, that respondent was without authority to try the case, it would have to be reversed. In either case, it was entirely immaterial what the evidence or any of the proceedings at the trial may have been, because the appeal was only intended to determine the right of respondent to have proceeded at all with the trial of the case. (4) The bill of exceptions in this case could not have been signed by bystanders. It is only where the judge denies the truth of the bill and certifies thereon in what particular he deems it untrue, that the signing by bystanders is permissible, and not then if the term has expired or the court fails to return the bills so that the signature of bystanders can be obtained. R. S. 1899, sec. 733; State ex rel. v. Field, 37 Mo.App. 95; State ex rel. v. Jarrott, 183 Mo. 204; Garth v. Caldwell, 72 Mo. 630. (5) The fact that the time given by the court to file the bill of exceptions had expired before this action was begun is not sufficient to prevent the issuance of this writ. State ex rel. v. Phillips, 96 Mo. 570; 107 Mo. 542; 130 Mo. 312; Merrill on Mandamus, secs. 192, 50, 80; Ethridge v. Hall, 7 Porter 47; People v. Hawes, 25 Ill.App. 326, 30 Ill.App. 94. (6) It is as much the duty of the court to examine and settle the bill of exceptions when tendered as it is to sign the same when admittedly correct. Collins v. Christian, 92 Va. 731; Page v. Clofton, Judge, 30 Gratt. 420; State v. Hawes, 43 Ohio St. 16; State v. Millett, 37 Mo.App. 83; Moose v. Kimball, 153 Mo. 579.

C. O. Tichenor, O. H. Dean and Lathrop, Morrow, Fox & Moore for respondent.

(1) The issues made by the cross-petitions and the answers thereto were of an equitable nature, and the bills of exceptions, therefore, should have contained all of the evidence. As the proposed bills of exceptions were mere skeleton bills, containing none of the evidence on the merits, it is submitted that it was a proper exercise of discretion on the part of the respondent to decline to sign them. Rule 7 of the Supreme Court; Rule 12 of the Supreme Court rules adopted at April term, 1877; State ex rel. v. Jarrott, 183 Mo. 204. (2) The defendants in the court below have a right to insist that the decrees rendered in their favor shall not be disturbed until this court has reviewed the entire evidence and found the merits of the cases against them. State ex rel. v. Jarrott, 183 Mo. 204; Flora v. Anderson, 75 F. 233. (3) There is no merit in relators' claim of error in the matter of the application for change of venue; for this reason alone the writ of mandamus should be denied. State ex rel. v. Matlock, 82 Mo. 476; Railroad v. Holladay, 131 Mo. 452; Wolf v. Ward, 104 Mo. 107; 19 Am. and Eng. Ency. of Law (2 Ed.), 751, 848; State ex rel. v. Railroad, 77 Mo. 147. (4) By sections 727-736, Revised Statutes 1899, the relators had a specific statutory remedy which excludes their right to the writ of mandamus. State ex rel. v. Wickham, 65 Mo. 634; State ex rel. v. Thayer, 15 Mo.App. 391; 19 Am. and Eng. Ency. of Law (2 Ed.), 748; State ex rel. v. County Court, 109 Mo. 248; State ex rel. v. Seibert, 130 Mo. 202; Tyler v. Township Board, 75 Mo.App. 561.

BRACE, J. Burgess, J., absent.

OPINION

In Banc

Mandamus.

BRACE J.

This is an original proceeding in mandamus to require the respondent, one of the judges of the Jackson County Circuit Court, presiding in division one of said court, to sign a bill of exceptions in the case of the relators against James Mackenzie, tried in said division of said court, and brought here by writ of error.

The questions to be decided arise upon a motion for a peremptory writ on the ground that the return is insufficient. The material facts upon which the discussion turns may be briefly stated as follows:

On the 26th of June, 1903, there was pending in the said division of said court nine separate and distinct actions against several defendants, of which the case against the said Mackenzie was one, some of which theretofore had been transferred over the protest of the plaintiffs therein from the other divisions of said court under the rules thereof to said division, and in all of which the issues were substantially the same.

The petitions contained two counts, one in ejectment in ordinary form, and the other an action under section 650, Revised Statutes 1899, to determine and define the title, estate and interest in certain lands in Jackson county between the several parties, and the answers contained cross-bills, the allegations and prayer of which were in substance, as follows:

"That the property involved in the action was a part of the fifty-two acre tract of land in Jackson county, Missouri which was owned by Thomas Jones at the time of his death in Jackson county, Missouri, in 1843; and that at the time of the death of said Thomas Jones, he left nine children, two of whom were Nancy Ann Jones, afterwards married to James Priddy, and Elizabeth Jones, afterwards married to W. P. Linville; that the said Thomas Jones died intestate, and the said Nancy Jones and Elizabeth Jones each inherited a one-ninth interest in said fifty-two-acre tract, including the property in controversy in each case; that the said Nancy Ann Jones intermarried with James J. Priddy in the year 1849, and that Elizabeth Jones afterwards intermarried with one William P. Linville; that on the 5th day of May, 1853, the said Nancy Ann Priddy was over the age of twenty-one years, and she, on that day, together with her husband, James J. Priddy, made, executed and delivered a deed of the property in question to one Lott Coffman, thereby conveying the one-ninth interest in said property vested in the said Nancy Ann Priddy; that the said Elizabeth Jones, being then unmarried and of lawful age, did join in such conveyance, and did thereby convey to the said Lott Coffman all her one-ninth interest in and to the said property; that the said Elizabeth Jones reached the age of twenty-one a long time before her marriage to the said W. P. Linville, and during the said period in which she was single and unmarried, and over the age of twenty-one years, she did not at any time undertake to disaffirm or repudiate, or in any way question the conveyance which she had made to Lott Coffman, although more than a reasonable time for that purpose had elapsed; that by virtue of the premises a good and sufficient title was conveyed to the said Lott Coffman of all the interest and estate of the said Nancy Priddy and her husband, James J. Priddy, and Elizabeth Jones, and that the defendants in each of said actions acquired, through mesne conveyances, all the right, title and interest so received by the said Lott Coffman; and that he and those under whom he claimed acquired the interest of the other heirs of Thomas Jones long prior to 1869, and have since been the owners of the entire estate in and to the property mentioned in the petition in each of said causes.

"That at the time of the said conveyance in 1853, the value of the said fifty-two acres of land did not exceed the sum of two hundred dollars, and that since that time the said real estate has increased in value to more than five hundred and five thousand dollars, and that improvements have been placed thereon exceeding in value the sum of six hundred and thirty-three thousand dollars; that the property owned by each defendant in said actions has greatly increased in value, and that each defendant has made valuable and lasting improvements thereon; that since the making of said deed in 1853, the said James J. Priddy and Nancy Ann Priddy his wife, and Elizabeth Linville, during their lifetime, and...