Swope v. Weller

• Court: Missouri Supreme Court
• Writing for the Court: Brace, J.
• Citation: Swope v. Weller, 119 Mo. 556, 25 S.W. 204 (Mo. 1894)
• Decision Date: 05 February 1894
• Parties: Swope, Plaintiff in Error, v. Weller et al

25 S.W. 204

119 Mo. 556

Swope, Plaintiff in Error, v. Weller et al

Supreme Court of Missouri, First Division

February 5, 1894

Error to Holt Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

J. C Fisher for plaintiff in error.

"The record proper by law is the petition, summons and all subsequent pleadings, including the verdict and judgment; and these the law has made it our duty to examine and revise; and for any error apparent in the face of these, which constitutes the record, we will reverse the cause." Bateson v. Clark, 37 Mo. 31. For error apparent upon the face of the record the supreme court will reverse a judgment, although the party complaining of the judgment has failed to present his objections properly. Nordmauser v Hitchcock, 40 Mo. 178; Railroad v. Mahoney, 43 Mo. 467; Ancell v. Cape Girardeau, 48 Mo. 80; Henderson v. Henderson, 55 Mo. 534; 62 Mo. 555. When plaintiff's petition combines an action at law and in equity, and the trial was as if a proceeding in equity, a judgment rendered therein, as though the trial had been that of a suit in ejectment, can not be sustained. Payton v Rose, 41 Mo. 257. Either the chancery branch of the case must be rejected as surplusage, and a trial and judgment had as if a suit at law, or the law branch must be rejected, and a trial and judgment had in accordance with the rules of chancery practice. Wynn v. Cary, 43 Mo. 301. In accordance with the principles laid down in the preceding section, proceedings in equity will not be enjoined where the question of title involved may be properly determined at law, or where the ground relied upon will be equally available if urged as a defense to the action of ejectment. High on Injunction, 415; Railroad v. Stewart, 3 C. E. Green, 489; Canal Co. v. Jersey City, 1 Beas. 227; Savage v. Allen, 54 N.Y. 458; Shaw v. Chambers, 48 Mich. 353; Gable v. Witherholt, 116 Ill. 313. Mere apprehensions or fear on the part of the persons seeking relief that the defendant may institute actions against him in the future, will not warrant a court of equity in enjoining the bringing of such actions. High on Injunctions [3 Ed.] 64; Wolf v. Burke, 56 N.Y. 115; Wallack v. Society, 67 N.Y. 23. Relief by injunction for the prevention of a multiplicity of suits, is allowed only when the subject-matter of the various litigations, as well as the party thereto, are substantially the same. And the fact of different suits having been brought, each having a distinct object, founded on distinct and separate grounds, and brought by different persons, does not constitute such a multiplicity of suits as to bring the case within the rule and to warrant an injunction. High on Injunction [3 Ed.], 65; Haines v. Carpenter, 91 U.S. 254. And it may be asserted generally that equity will not, in the course of judicial proceedings restrain a person from asserting titles to real estate, unless in a case entirely free from doubt. Where the title is being tested by an action of ejectment in a common law court having jurisdiction of the subject matter, a court of equity will rarely interfere or enjoin proceedings. Stockton v. Williams, 1 Doug. (Mich.) 414; Railroad v. Barrett, 65 Ga. 601.

Huston & Parrish for defendant in error.

(1) There is no error in the record and the evidence given in the case not being preserved, the presumption is in favor of the correctness of the judgment of the court below and should be affirmed. Christ v. Railroad, 36 Mo.App. 663; Huxley v. Harrold, 62 Mo. 516; Long v. Long, 96 Mo. 180; Claflin v. Sylvester, 99 Mo. 276; Sebree v. Patterson, 92 Mo. 451; Overholt v. Vieths, 93 Mo. 422; Tierney v. Spiva, 97 Mo. 98; Schad v. Sharp, 95 Mo. 573; State v. Avery, 113 Mo. 475; Lewis v. Whitten, 112 Mo. 318. (2) One who has been successful in two or more actions in ejectment may have a bill of peace to prevent vexatious litigation or multiplicity of suits and as the evidence given on the trial in this case is not before this court, as to the action of Swope and the number of actions instituted by him against Barnard and his tenants and the nature and result of them, the presumption is that the evidence fully justified the decree rendered, and this court is bound thereby. Sutton v. Dameron, 100 Mo. 141; Spencer v. O'Neil, 100 Mo. 49; Parks v. Bank, 31 Mo.App. 12; Claflin v. Silvester, 99 Mo. 276; Christ v. Railroad, 36 Mo.App. 663; Campbell v. Buller, 32 Mo.App. 646; Newman v. Newman, 29 Mo.App. 649. And it will be presumed, unless the record shows to the contrary, that the circuit court predicated its decree on the correct ground. Sebree v. Patterson, 92 Mo. 451. (3) There is no question of the right of the defendants to invoke the equitable jurisdiction of the court to protect them against vexatious litigation and the multiplicity of suits at the hands of the plaintiff; in fact this is their only remedy. Parks v. Bank, 31 Mo.App. 12; Spencer v. O'Neil, 100 Mo. 49; Sutton v. Dameron, 100 Mo. 141; Primm v. Raboteau, 56 Mo. 407. The land in suit is a part of the body of land conveyed by Swope to Barnard. It is not necessary, therefore, that it should have been in suit in each particular instance, to enable the defendants to maintain their bill. It is sufficient if the title to the whole body had been litigated. Primm v. Raboteau, 56 Mo. 407, and authorities cited. (4) There is nothing in the point presented by counsel for plaintiff in error, as to the order of trial, nor are the authorities cited applicable to the facts in this case. If a correct result was reached, although the proceedings were had upon an erroneous theory and irregular, the judgment should not be disturbed. Park v. Bank, 31 Mo.App. 12; Conley v. Doyl, 50 Mo. 234; Bridge Co. v. Ring, 58 Mo. 491.

Brace J. Barclay, J., concurring.

OPINION

Brace, J.

This is an action in ejectment brought here by writ of error from the circuit court of Holt county. The petition is in common form. The answer of Weller, one of the defendants, is a general denial. The answer of John F. Barnard, the other defendant (Weller's landlord) contains a general denial, and an affirmative plea for equitable relief. The issue upon the ejectment branch of the case was submitted to a jury, and found for the defendants. The issues joined by the plaintiff's reply to the affirmative plea of Barnard, were then taken up and tried by the court, found for said defendant, a decree rendered in his favor, and judgment in favor of both defendants for costs. A motion in arrest of judgment was thereafter filed in time by the plaintiff, and overruled, and thereafter he sued out his writ.

The substance of Barnard's plea is: That the plaintiff, being the owner and in possession of the land described in the petition, on the thirtieth day of April, 1880, sold the same, together with other lands, to Bar nard, and executed and delivered a general warranty deed to him therefor; that said land was purchased for a town site; that the town of Maitland is located thereon; that, ever since said purchase, the said Barnard and those claiming under him have been in possession of said lands; that said land has been divided and laid out into town lots, has been improved as such, and is now occupied and used by different persons holding under the said Barnard; that plaintiff is a litigious person, constantly harassing his neighbors with law suits.

"That said plaintiff at intervals has been in the habit, since the sale of said lands by him to said Barnard, of entering upon portions of the same at selected places and attempting to take possession of the same, by plowing and doing other kinds of labor thereon; that said plaintiff has been constantly annoying this defendant and his tenants and others holding under him with vexatious and unreasonable law suits in different forms, for parts of said land, claiming that there were more lands contained in the deed describing said lands, than he was paid for, and then selecting a piece or part thereof, sometimes lots, and sometimes an acre, and at other times more, and bringing a suit of forcible entry and detainer for it before a justice of the peace of said county, or an action of ejectment in the circuit court of said county; that said plaintiff has instituted six or eight suits prior to this one before justices of the peace in the circuit court of said county for said lands or parts of lands so conveyed by him to this defendant as aforesaid, all of which were determined against him; that when said plaintiff was defeated before the justices of the peace he would in some instances appeal the case to the circuit court of said county.

"The defendant further states that said plaintiff instituted a suit, in the circuit court of said county, of ejectment, on or about the day of 18 --, against one William A. Long, who was the tenant of defendant, for a part of said land so sold by him to the defendant as aforesaid, and took a change of venue on account of the alleged prejudice of the judge of the circuit court against him, and said cause was transferred to the circuit court of Gentry county, Missouri for trial; that the judge of said court last named required the said plaintiff to secure the costs, which he failed to do, and said case was dismissed by the court for said failure to comply with said order.

"The defendant further states that he has been compelled to hire counsel and in other manner to lay out and expend large sums of money in and about defending against said suit, and has been put to great trouble and annoyance defending the same, and has been greatly vexed and harassed in the premises by reason of the unlawful and vexatious conduct of the plaintiff; that said plaintiff, in consequence of his unreasonable conduct and litigious disposition and habits, has become a subject of great dread and constant...