Stone v. Boston
| Decision Date | 15 March 1949 |
| Docket Number | No. 27550.,27550. |
| Citation | 218 S.W.2d 783 |
| Parties | STONE et al. v. BOSTON et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Theodore Bruere, Judge.
"Not to be reported in State Reports."
Action for injunction by William J. Stone and another against Herbert Boston and others, to enjoin defendants from trespassing on lands claimed by plaintiff. From an adverse order, defendants appeal.
Appeal dismissed.
Warren H. May, of Louisiana, and John H. Haley, of Bowling Green, for appellants.
Long & McIlroy and R. L. Motley, all of Bowling Green, and F. D. Wilkins, of Louisiana, for respondents.
This action for an injunction was brought in the Circuit Court of Pike County, Missouri, by respondents as plaintiffs to enjoin and restrain appellants as defendants from trespassing on and appropriating lands claimed to be owned by plaintiffs and described in their petition. After a trial, the court rendered a decision granting plaintiffs a part of the relief prayed for by them, and entered certain other orders which will be referred to later herein. Defendants have brought the cause to this court by appeal
Plaintiffs' petition was filed on October 30, 1947, on which day the court issued a "preliminary injunction" and ordered defendants to "show cause * * * on the 10th day of November, A.D. 1947, at 10:00 A.M., of said day, why temporary injunction should not be granted restraining said Defendants from trespassing, entering upon or interfering with in any manner the land, or any part thereof, described in Plaintiffs' petition and alleged to be owned by said Plaintiffs and under their possession and control."
On November 6, 1947, defendants filed an answer admitting the averments in paragraph I of plaintiffs' petition, but denying all other averments therein. At the same time defendants also filed a motion to dissolve the preliminary injunction and to dismiss plaintiffs' petition. After hearing testimony on November 10, 1947, the court found that plaintiffs were entitled to the relief prayed for and issued a temporary injunction enjoining defendants from entering upon or interfering with the land or any part thereof described in plaintiffs' petition until the further order of the court. The court also entered an order setting the cause for trial on December 23, 1947.
On December 23, 1947, after a hearing, the court overruled defendants' motion to dissolve the temporary injunction and dismiss plaintiffs' petition, and ordered a "perpetual" injunction as to the real estate described in paragraph I of plaintiffs' petition. At the same time the court continued the temporary injunction theretofore granted as to the land described in paragraph II of plaintiffs' petition "to await the result of the dispute between the parties as to the title or right to the said lands." On said December 23, 1947, the court also made the following order: "Because the right or title to the premises described in paragraph two of the petition is doubtful and denied by answer of defendants, court gives defendants an opportunity to establish them by requiring defendants within 30 days to file their pleading in this court to establish their title to the disputed premises and prosecute the same with effect, and failing to do so said injunction shall be made permanent."
On January 22, 1948, defendants filed an amended answer in which they admitted the averments contained in paragraph I of plaintiffs' petition and denied the averments of paragraphs II, III, IV, V, VI and VII, constituting the remainder of said petition except the prayer thereof.
On February 4, 1948, plaintiffs filed a motion to strike the paper designated as "amended answer" from the files. On February 9, 1948, defendants filed an application and affidavit for change of venue which was denied by the court on the same day. Thereafter on the same date, February 9, 1948, the court sustained plaintiffs' motion to strike defendants' amended answer from the files. On February 14, 1948, defendants filed a motion for a new trial. The date of the filing of said motion for new trial was shown in the transcript as "March 1, 1948," but a stipulation by counsel for the parties appended to the transcript of the record shows the correct date of the filing thereof as February 14, 1948. On March 1, 1948, plaintiffs filed a motion to strike defendants' motion for a new trial from the files. On May 11, 1948, the court sustained plaintiffs' said motion, and on the same date, May 11, 1948, defendants filed their notice of appeal for the purpose of taking an appeal to this court.
The record shows that neither plaintiffs nor defendants sought any direct relief with respect to the title to the lands in question herein. It appears, therefore, that title was and is only collaterally involved, and that this court has jurisdiction to determine all the questions in issue. Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 952, 2 S.W.2d 771, 774; Wallach v. Stetina, Mo.Sup., 20 S.W.2d 663.
Before we go into the merits of the case, however, we must determine whether the appeal was properly taken, for plaintiffs have included in their brief herein a motion to dismiss the appeal. A clear understanding of the case will be obtained by a short review of the pleadings.
In paragraph I of their petition plaintiffs alleged that they are husband and wife and that they are seized and possessed, in fee simple, of land aggregating 169.85 acres in Pike County, Missouri "Excepting However a strip 25 feet in width from east to west and 858½ feet in length from north to south" abutting certain described land of James Boston. Said land is described at length in said paragraph I. Defendants, in their answer and amended answer, admitted that title to the land described in said paragraph I of plaintiffs' petition, was and is in plaintiffs. Defendants also conceded that plaintiffs were in possession of said land at the time of the alleged trespass and injuries complained of in plaintiffs' petition.
Defendants stated in their amended answer that defendant James Boston was and is the owner of the "strip of land 25 feet in width" referred to in paragraph I of plaintiffs' petition, and alleged that said "strip of land" was purchased by said defendant as a means of ingress and egress to and from said defendant's other land described in said amended answer, to connect with the public roadway mentioned in paragraph II of plaintiffs' petition. It thus appears that plaintiffs and defendant James Boston own adjoining land, and that there is no dispute as to said defendant's ownership of the "strip of land 25 feet in width" connecting said defendant's land with the public roadway mentioned.
In paragraph II of said petition plaintiffs alleged that they are the owners of an abandoned roadway running across and adjoining and along the northwest corner of the property described in paragraph I of their petition, and that they and those under whom they claim have held open, notorious, and adverse possession thereof for more than ten years last past, and that said roadway is not now nor has it been for more than ten years last past traveled or used as a public highway; that it was fenced by plaintiffs and under their possession and control for many years last past and owned by them.
As heretofore shown, defendants denied, in both their answers, plaintiffs' allegations of title to and ownership of the above mentioned roadway.
In paragraph III of their petition, plaintiffs alleged that defendants and other persons under the control and direction of defendants on or about October 28, 1947 threatened "to unlawfully enter upon the above described land, and did, * * * tear down and destroy plaintiffs' fences and enter upon * * * the property of Plaintiffs then and now, and from said date have continuously threatened to unlawfully and forcibly and against the will of Plaintiffs cut and destroy the vegetation growing on said land, and by use of a bulldozer and other means have plowed, cut up, and destroyed much of said land by moving and leveling the dirt thereon and attempting to construct a roadway across and over said described premises."
Paragraph IV of plaintiffs' petition further described the alleged acts and conduct of defendants with respect to said land and charged that defendants "are threatening to appropriate and are appropriating said land to their own use and benefit; that the Defendants then knew and still know that Plaintiffs are the legal owners of said land; that Defendants then knew and still know that they did not have then, or they have not now any right, title, claim or interest in and to said real estate."
In paragraphs V, VI and VII of their petition plaintiffs alleged that defendants are still carrying on the trespasses above alleged and will continue to do so; that the property will suffer damage and prove worthless unless defendants are restrained by the court, and that plaintiffs have no...
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