Trefny v. Eichenseer

• Citation: 171 S.W. 930,262 Mo. 436
• Parties: CHARLES LOUIS TREFNY, Appellant, v. WILLIAM EICHENSEER et al
• Decision Date: 02 December 1914
• Court: United States State Supreme Court of Missouri

171 S.W. 930

262 Mo. 436

CHARLES LOUIS TREFNY, Appellant, v. WILLIAM EICHENSEER et al

Supreme Court of Missouri, First Division

December 2, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.

Affirmed.

F. W Imsiepen and Andrew J. Haverstick for appellant.

A complaint will be regarded as stating but one cause of action although it may pray for many and various forms of relief where they are all germane to the vindication of a single primary right." Kelly v. Hurt, 61 Mo. 463; Lincoln v. Rowe, 51 Mo. 571. "Since a bill is single and does not misjoin different causes, so long as its object is the complete enforcement of one general right, the fact that different defendants have distinct interests or liabilities with reference to that right does not render a bill multifarious." Kelly v. Hurt, 61 Mo. 463; Lincoln v. Rowe, 51 Mo. 571; 16 Cyc. 252, note 16; 1 Story, Equity Jur. (9 Ed.), p. 377, sec. 400. "If the bill presents a common point of litigation decisive of the entire matter, it is not multifarious, although the interests or liabilities of defendants are unconnected except by such common question." Martin v. Martin, 13 Mo. 36. "A bill is not multifarious merely because each defendant's interests do not extend to all the matters of a bill with a single general object. It is sufficient if each defendant is interested in some matter involved which is connected with the others." 16 Cyc. 251, note 34; Truss v. Miller, 116 Ala. 494; Booth v Stamper, 10 Ga. 109; Worthy v. Johnson, 8 Ga. 236; Lenz v. Prescott, 144 Mass. 505; Curran v. Campian, 85 F. 67.

George W. Lubke, George W. Lubke, Jr., and Frank X. Hiemenz for respondents.

We have a petition containing two counts attempting to state two causes of action, growing out of the same state of facts, one equitable and the other legal, the first of which affects all the parties to the suit and the second of which affects only a part of the parties to the suit. That this is not permissible under the statute is well settled. The statute permits as many causes of action, legal or equitable, or both, arising out of the same transaction to be joined in one petition only in the event that they affect all the parties to the action. The causes of action attempted to be stated in the petition in the case at bar, while they grow out of the same state of facts, do not both affect all the parties to the action and therefore they cannot be joined in the same petition. R. S. 1909, sec. 1795; Beattie Mfg. Co. v. Gerardi, 166 Mo. 156; Liney v. Martin, 29 Mo. 28; Doan v. Holly, 26 Mo. 186.

LAMM, J. Bond, J., concurs in result.

OPINION

LAMM, J.

Cast below on several joint and separate demurrers, plaintiff stood on his petition, refused to plead over, suffered judgment and appeals.

The demurrers on which plaintiff was made to go out of court have a common ground reading: "That several causes of action have been improperly united" in said petition. That is a statutory ground of demurrer -- the fifth. [R. S. 1909, sec. 1800.] Our statutes prescribe rules for uniting causes of action in the same petition. One of them is that a "plaintiff may unite in the same petition several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: First, the same transaction or transactions connected with the same subject of action. . . . But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action." [R. S. 1909, sec. 1795.]

Defendants maintain that the petition is obnoxious to the statutory rule just announced; hence the demurrers being levelled at that contention, it presents the single question in the case. Attend to the record:

Plaintiff, claiming to own certain valuable real estate in the city of St. Louis, filed his bill in equity against certain named defendants (to-wit, four, Eichenseer, Ammen, Charles William Trefny, and Nolte, sheriff) and in aid of the bill sought and got against all the defendants a temporary injunction before the return term, restraining an alleged wrongful execution sale of said real estate. To that bill he added a second count at law which prayed damages, $ 5000 compensatory, and $ 5000 by way of smart money for malicious wrongs in the premises. This count at law in set terms involved only two of the defendants, Eichenseer and Ammen.

Presently, before the return term, he filed what he called his "first amended and supplemental petition," bringing in a new party defendant, Eyerman, and asked a temporary injunction against him to restrain the sale of the same real estate under another execution and prayed additional relief not material here. In this "supplemental and amended petition" he added against three of the defendants, to-wit, Eichenseer, Ammen and Eyerman, a count in damages at law on the same transaction pleaded in the first or equity count and on transactions connected with the same subject of action, laying his damages at $ 14,000, divided between compensation and smart money half and half. As we understand this record, a temporary injunction issued against the new party, Eyerman, and sheriff Nolte.

Presently at the return term plaintiff dismissed one of the then defendants, Charles William Trefny, and by leave filed what he called a "second supplemental petition" and by the same token brought in a new party, Pearl Byrnes. This latter petition is the one challenged by the demurrers and thereby plaintiff plants himself upon the grounds where he wishes to pitch his forensic battle. It is too long to copy and we give our estimate of it, thus: It is in two counts -- the first, a copious bill in equity seeking relief in clearing title to real estate and preventing threatened sales calculated to wrongfully cloud the title; the second, a suit at law for damages. The first brings forward the various allegations in the former petitions, connects Eichenseer, Ammen and Eyerman as co-conspirators to a common wrongful intent and design and adds new averments connecting Pearl Byrnes with the subject of the cause of action. As said, in its general scope the object of the bill was to enjoin certain levies and threatened sales under executions against the father of plaintiff (said Charles William Trefny), which said executions were levied as hereinbefore mentioned on valuable real estate claimed by plaintiff in the city of St. Louis. It runs on the theory these levies were wrongful and malicious, the product of conspiracy and were intended to depress the value and clog the alienation of plaintiff's property by casting a cloud on his title, etc., etc., and to extort money from him. The bill further averred that defendants had been successful in making one sale under a similar execution and that defendant Byrnes had bought at such sale for and on behalf and as a "tool of" certain of her codefendants named and received and recorded a sheriff's deed purporting to convey the property as that of a third person, to-wit, defendant's said father. The bill also seeks to remove the cloud of that sale and the record of that sheriff's deed and asks general relief. The second count confessedly arises out of the same transaction or transactions connected with the same subjects of action and asks $ 10,000 in damages for acts he characterizes as libels on his title, acts done in furtherance of a malicious conspiracy to injure plaintiff. That there may be no question that such is the fact, plaintif...