author: WOODSON, J.

text:
    HENRY C. NOBLE et al., Plaintiffs in Error, v. JONATHAN BRINSON et al.
    Division One,
    December 23, 1910.
    1. APPEAL: No Motion for New Trial: Supplemental Abstract. Where the printed abstract of the record, proper does not show that a motion for a new trial was filed, appellant will not be permitted, after respondent haa filed objections pointing out this defect in the abstract, to amend it, or to file a supplemental abstract, showing that the record of the trial court shows that such motion in fact was filed; and that must be the ruling, although the bill of exceptions filed in the cause shows that the motion was filed in due time. And where the record proper fails to show that a motion for a new trial was filed, ithe appellate court cannot consider that motion or any matter of exception.
    2. -: -: Record Proper: Quieting Title: Defective Judgment. Though the printed abstract of the record proper fails to show that any motion for a new trial was filed and for that reason the motion cannot' he considered in the appellate court, yet the record proper may be considered, a part of which is the judgment, and if it shows a judgment defective on its face it will be reversed. And-in a suit to quiet title, where the judgment adjudges plaintiiis (who are appellants) to be owners of ten-twelfths of the land, and recites that one defendant was duly served but made default, and adjudges to him one-twelfth of the land, subject to certain advancements, the judgment will be reversed as to him, but not as to the other defendant who did not default and to whom was adjudged another twelfth.
    Error to Holt Circuit Court . — lion. Wm. C. Ellison, Judge.
    Reversed and remanded (luith directions).

      H. S. Kelley and Frank Petree for plaintiffs in error.

      J. M. Davis <& Son for defendants in error.'
   WOODSON, J.

This is a suit, instituted under section 650, Revised Statutes 1899, to quiet title to a certain tract of land situate in Holt county, Missouri, particularly described in the pleadings. A trial was had before the court, and the decree was for plaintiffs for an undivided ten-twelfths thereof, and in favor of defendants Richards and William Huiatt for one undivided twelfth each. From that judgment plaintiffs sued out a writ of error from this court.

I. Counsel for defendant W. H. Richards timely raised the point that the printed abstract of the record proper filed in this court by 'plaintiffs does not show that any motion for a new trial was filed in the case. Counsel for plaintiffs confess that the abstract of the record proper does not show that such motion was filed, and then filed in this court a motion praying leave to file an additional or supplemental abstract showing that the record proper does show that said motion was filed and in due time. This motion is vigorously opposed by counsel for said defendant. However, the bill of exceptions filed in the cause shows that the motion for a new trial was filed in due time. Upon that showing counsel for plaintiffs insist that the court should grant them leave to file a supplemental abstract supplying the defect suggested.in the record.

The uniform ruling of this court, except in very rare cases, of which this is not one, has been that the abstract cannot#be amended after objections have been filed pointing out its insufficiency, otherwise the beneficial object of the rule would be practically destroyed, for the reason that if when the deficiencies are suggested the opposite party should be permitted to amend the same, then the time and labor consumed by this court and counsel in investigating the matter would be totally lost; and, if permitted, the party in default would not be inconvenienced or suffer loss by reason of having failed to comply with the rules of the court, but would encourage loose practice in that regard.

Moreover, in those cases where the party relies exclusively upon his motion to dismiss, which he has a perfect right to do, and files no brief and argument upon the merits of the case, the cause, if leave to amend should be granted, would have to be continued in order that the moving party might have an opportunity to prepare his case for hearing upon its merits. That would lead to delays, disarrange the docket and cause endless confusion in the administration of the law. Such a practice should not be tolerated, and does not prevail in this court, as is shown by the numerous cases decided by us.

II. This brings us to the consideration of defendant’s motion to dismiss the cause because the abstract of the record proper fails to show that a motion for a new trial was filed.

Under the rulings, of this court, the record proper must show that a motion for a new trial was filed before we have any right to consider it, or to review any matter of exception preserved in the record. [Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Pennowfsky v. Coerver, 205 Mo. 135.] But, independent of those rulings, counsel for plaintiffs earnestly insist that, since the bill of exceptions shows that the motion for a new trial was in fact filed, the motion to dismiss should be overruled, for the reason that when the bill of exceptions was signed, seale’d, filed and made a part of the record, it then became of equal dignity with the record proper, and should carry absolute verity with it as regards the filing of the motion, as it does of the contents of the motion itself and of other matters contained therein.

Speaking individually, the technical and hair-splitting difference between what matters, should be preserved in the record proper and what in the bill of exceptions is of such little importance and so devoid of all real substance, that I think, under the spirit and liberal provisions of our code, it should be disregarded. The two taken together constitute the record of the case, and the books are full of cases which show that the bill of exceptions not only is of equal dignity and entitled to the same verity that is accorded to the record proper, but in numerous instances controls the latter. Beyond that, this court has repeatedly held that the mere handing of a motion to the clerk of the court with a request to file the same constitutes a valid filing of the instrument, and that it was wholly immaterial whether the clerk had ever marked it filed or not. And, in addition, we have held that said unmarked motion found among the files of the case, the bill of exceptions, and any other papers bearing upon the question might be used as evidence upon which to base a nunc pro tunc order showing such filing. That being true, then when in a case like this where the bill of exceptions, which is a part of the record, bearing absolute verity, shows that the motion for a new trial was filed, it seems to me to be “sticking in the bark” and casting substance away for useless formality.

Do not misunderstand me. I'do not mean to say that a motion for a new trial ought not to be filed, or that it need not appear upon the record proper of the court where so filed; but the point I am trying to make is, that where that fact actually exists, then it is entirely, immaterial in so far as this court is concerned whether that fact appears in the record proper or in the bill of exceptions. Both are of equal verity, and in my opinion when a matter appears in either that should be sufficient to authorize this court to act thereon.

The bench and bar know what entries .should appear of record proper and what in the bill of exceptions; and in the absence of a showing to the contrary, when a matter appears in the record, we should presume it was- preserved in the proper receptacle.

Since, however, this matter is controlled by the rules of the court, adopted by the Court in Banc, I, being only one of the seven members constituting it, am powerless to abrogate the same, or to extricate the plaintiffs from the embarrassing position in which they find themselves.

However, the motion to dismiss must be overruled, for the reason that the record proper is here for consideration excepting the entry showing the motion for a new trial was filed. Upon that condition of the record it becomes our duty to inspect the pleadings and judgment ; and if the former present a cause of action, and the latter is predicated thereon and responsive to the issues joined, then it becomes our duty to affirm the judgment.

We have inspected the pleadings and judgment in the case, and find that the former present a good cause of action and defense, and that the judgment is responsive thereto. However, we discover an error upon the face of the judgment, namely, that William Huiatt was duly served but came not, and made default; notwithstanding that fact thé judgment gave him an undivided one-twelfth- of the land in controversy, subject to certain advancements made to him by his grandfather during his lifetime. Clearly this was reversible error in so far as William Huiatt was concerned, but that in , nowise affects the validity of the judgment as to defendant Richards.

We, therefore, reverse the judgment and remand the cause to the circuit court with directions to enter judgment for the defendant Richards for an undivided one-twelfth interest in the land found by the court to belong to him, subject to- the advancements mentioned in the petition and reply and to enter judgment for plaintiffs against all the defendants for the other eleven-twelfths of the land, as prayed.

Graves, J., concurs in tolo; Lamm, P. J., and Valliant, J., concur in result.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    A. E. KOCH, Appellant, v. A. GORDON et al.
    Division One,
    December 23, 1910.
    1. EJECTMENT: Notice of Color of Title. A deed to defendants, on record when their grandfather built for them on their lot a house which lapped over thirteen inches on his own lot, was notice to his subsequent purchasers of adverse possession under color of title, if the deed to defendants covered the strip.
    2. -: Description: Monuments. When monuments are called for in the description of a lot in a deed, they are ordinarily given precedence over distances. But a monument is a fixed, visible object. “The southwest corner of the portion of said lot formerly owned by Mary M. Burke>, and where she now resides,” and such like descriptive matters, are not real monuments, and cannot overcome the'description by distances in the deed.
    3. -: Adyerse Possession: Limitations. Unconditional and unequivocal adverse possession of a thirteen-inch strip between ' two lots, for twenty years, under color of title and claim of ownership, bars ejectment..
    4. -: -: Admission: Efforts at Compromise. An agreement by one of two cotenants that he would, for certain favors, sign a release deed t'o plaintiff, if his sister would, is not an admission that their possession was not adverse.
    5. - — : Tax Receipts. The description in tax receipts of “The undivided east frac. Lot 5, Block 57” is too indefinite to indicate on what part of the 58-foot lot, subdivided into one lot of 30 feet and another of '28 feet, the taxes were paid.
    Appeal from Phelps Circuit Court. — Hon. L. B. Woodside, Judge.
    Aeeir.med.

      G. D. Jamison for appellant.
    Contracts may be read in the light of surrounding circumstances. Agan v. Shannon, 103 Mo. 661; West v. Bretelle, 115 Mo. 653. In the construction of deeds the controlling canon is to ascertain the meaning of the grantor, from the words he uses, in the light of the circumstances which surround him and attend his use of them. Long v. Timms, 107 Mo. 512; Gribson v. Bogy, 28 Mo. 478; Jamison v. Popiano, 46 Mo. 197. The surrounding circumstances were: First, the fact that Malcolm had already conveyed part of the same lot to Mary M. Burke; second, confusion in the minds of the parties as to the number of feet in the lot? third, the fact, that they failed to measure the frontage, and their evident indifference to distances; fourth, the fact that they adopted monuments on three sides of the part described; fifth, the evident anxiety of Malcolm not to trespass on the part of the lot formerly deeded to Mary M. Burke; sixth, the fact shown by the recitals of the deed that the grantees took no personal interest in the deal; seventh, the existence of the foundation of an old’ wall that misled defendants when they came to take possession; eighth, the fact that defendants (or Luster for them) did not make the deal for more than 26 feet. The chief object in the interpretation of contracts which are in any way ambiguous, is to get at the intention of the parties who made them. Sedaba Brewing Co. v. Waterworks Co., 34 Mo. App, 49; Ice Co. v. Heinze, 102 Mo. 245 ; Crater v. Arnold, 134 Mo. 19'5; Belch v. Miller, 32 Mo. App, 387. There is no * better way for the court to arrive at his actual intent than to put itself, as. near as may be, in the situation of the grantor, at the time of the execution of the instrument. Speed v. Railroad, 163 Mo. 111. We are to seek fo.r the intention of the grantor. Broadman v. Teed, 6 Pet. 328, Instead of giving to the language used in a deed or will an unbending or rigid interpretation, as was done by the courts in former times, that rule has been broadened, as the science of law kás advanced, so that now the language used in such instruments is construed so as to carry into effect the intention of the parties, and not literally as written. Speed v. Railroad, 163 Mo. Ill; Lawson on Contracts, secs. 386, 387, 388 and 389'. (2) The courts will examine the whole of the contract to arrive at the intent. It is a fixed principle in the construction of deeds that-monuments, when called for in the descriptions in a deed, will control calls for courses and distances. Burnham v. Hitt, 143 Mo. 414; West v. Bretelle, 115 Mo. 653 ; Shewalter v. Pimer, 55 Mo. 218; Whitehead v. Reagan, 106 'Mo. 236; Kronenberger v. Hoffner, 44 Mo. 194; Gibson v. Bogy, 28 Mo. 478; Johnson v. Boulware, 149 Mo. 451; Rutherford v. Tracy, 48 Mo. 325; 3 Washburn, Real Prop. (4 Ed.), 405. Natural monuments are of higher value, yet artificial ones control courses and distances. Whitehead v. Reagan, 106 Mo. 231; Kronenberger v. Hoffner, 44 Mo. 185'. Adverse possession is not merely an occupancy • nor is it merely a staying on the premises in broad daylight. In addition to these things there must be an assertion of exclusiveness — an exclusiveness not only of possession but of title as well. The court erred in its finding, mistaking defendants’ hostile feeling toward the person of plaintiff for an adverse design on his estate. Defendants did become adverse about the time this suit was instituted; their possession was never so. Crawford v. Ahrens, 103 Mo. 88; Pinch v. Hllman, 105 Mo. 255; McWilliams v. Samuel, 123 Mo. 659; Milling Co. v. Riley, 133 Mo. 586; Patton v. Smith, 171 Mo. 231.

      Jones Bros, and C. H. Shubert for respondents.
    (1) The evidence shows that defendants and their immediate grantors took possession of the disputed thirteen inches of ground many years prior to 1891' and in that year constructed the thirteen-inch brick wall on said ground. This unequivocal conduct was sufficient to indicate that defendants and grantors then and there established a holding adverse to title of any other claimant. Hunnewell v. Adams, 153 Mo. 444;-Cole v. Parker, 70 Mo. 372; Handlan v. McManus, 100 Mo. 124; Battner v. Baker, 108. Mo. 311; Goltermann v. Sehiermeyer, 111 Mo. 404; Shotwell v. Gordon, 121 Mo. 482; Hedges v. Pollard, 149 Mo. 224; Meyers v. Sehuchmann, 182 Mo. 159. (2) Defendants are not in the position of one holding in ignorance of trne line and who intends to hold only to the trne line. By their act of building a permanent brick wall, defendants and grantors said, in effect louder than words, ‘ ‘ Here is the true line.” Prescription ripened such to perfect title. "Walbrunn v. Bailen, 68 Mo. 166; Handlan v. McManus, 100 Mo. 124; Irwin v. Woodmansee, 104 Mo. 403; Battner v. Baker, 108 Mo. 311; Davis v. Brasswell, 185 Mo. 576; Draper v. Smoot, 25 Mo. 201. (3) Defendants’ deed calls for the ground on which this wall stands, makes color of title, and if there was any defect in the description it is cured by prescription. (4) The circuit court is the judge of the weight of the evidence in a case at law, in the absence of a jury. There was ample evidence from which the court could find that the holding of defendants was adverse from its inception. Handlan v. McManus, 100 Mo. 124; Irwin v. Woodmansee, 104 Mo. 403; Battner v. Baker, 108 Mo. 311.
   VALLIANT, J.

Ejectment for a small strip, of land in lot 5, block 57, of the County Addition to the city of Rolla. The material facts are as follows:

David W. Malcolm in 1870 owned 58 feet of lot, 5 fronting Seventh street. In 1881 Edward Luster, the grandfather of the defendants, the Joneses, while they • were minors, bought for them a part of that 58 feet, the extent and description of which is the point in dispute in this ease. In 1884 Luster bought for himself 30 feet of the 58 lying east of the lot he had previously bought for his grandchildren. Measuring 30 feet off the east left 28 feet of the 58. That 28 feet is claimed by the defendants. In 1886 Luster sold the 30-foot lot to one Sears, and it is now owned by the plaintiff, it having been conveyed to him by deed April 2d, 1903. While Luster owned the 30'-foot lot he built a brick house on the 28-foot lot belonging to his grandchildren, the Joneses, the east wall of which the plaintiff now contends is thirteen inches over the line on his lot. That house was built over twenty years ago and has been in the possession of the Joneses through their tenants ever since. Plaintiff and those under whom he claims have paid the taxes on the 30-foot lot from 1892 down to date.

Shortly before this suit was begun, the plaintiff, intending to build on his lot, had it surveyed, and then discovered (or thought he did) that the east wall of defendants’ house encroached on his territory. • He spoke to Mr. Jones about it, and made him a proposition to which hé said he would consent subject to the approval of his sister, his cotenant. But when the contract was sent to the lady to sign she declined to do so and the negotiation ended; then the suit was brought.

The defendants Gordon and Hammer are tenants of the other defendants, Thomas E. Jones and Jesse-mine Cassell, nee Jones. In their answer they admit possession and deny all allegations and plead adverse possession for more than ten years. The cause was tried by the court, jury waived, the finding and judgment were for the defendants and plaintiff appealed.

' There were instructions asked, some of which were given and some refused, but we do not consider it necessary to 'cumber the record with them in detail; the only question in the case is, did the evidence show that the defendants had been in adverse possession for a period long enough to give them title to the thirteen-inch strip in dispute ?

In 1881 when Luster bought the west twenty-eight feet for his grandchildren, the Joneses, the title to the thirty feet lying east of it was owned by Mrs. Burke. But in 1884, before the house was built, Mrs. Burke sold the lot to Luster, and while he owned it he built the house for his grandchildren, and if it lapped over the line it was. on his land. The deed to the Joneses was on record when the house was built, and the house was there in 1886, when Luster sold to Sears, through whom plaintiff took title. If, therefore, the description in the Jones deed was sufficient to cover the strip of land in dispute, the record of it was notice sufficient of adverse possession under color of title. _ But plaintiff contends that the description in the deed was. not sufficient; it was as follows: ‘ ‘ Commencing twenty-six feet west of the southeast corner of lot No. five, in block fifty-seven, of the County Addition to the city of Rolla, being the southwest corner of the portion of said lot formerly owned by Mary M. Burke, and where she now resides, and running thence north, on a line corresponding with the original survey of said block in the original plat thereof, twenty-six feet, thence west on a line corresponding with said survey twenty-six feet or to and intersecting the northeast corner of a lot formerly owned by Andrew Malcolm, purchased by him of one Watkins, and also formerly owned by one William Robeson,. and being a portion of lot No. four in said block, and running thence south from said northeast corner of said Robeson lot, along and with the east line of said lot formerly owned by said Andrew Malcolm, to said Seventh street, to the place of beginning. ”

■The following diagram may aid in understanding the point in dispute.

The space between the dotted lines indicates the strip in dispute.

The line AB is 2& feet; BD is 30 feet; CD is 26 feet; D being the southeast corner of the lot, is the starting point to find the point of beginning called for in the deed; going west from D 26 feet we come to 0, the point of beginning; thence north along the dotted line 26 feet; thence west 26 feet or to and intersecting the northeast corner of the lot formerly owned by Andrew Malcolm, thence south‘along the east line of the Malcolm lot to Seventh street, ‘ ‘ to the place of beginning. ’ ’ Appellant construes the words last quoted as being-equivalent to saying, “to 7th street, the place of beginning. ’ ’ But to place that construction on the words used would be to stop the description at A, giving the north, the west, and the south courses, but not giving the east course, and not in fact reaching the place of beginning. A is in the north line of Seventh street, but it is not the place of beginning; 0, also in the north line of Seventh street, is the place of beginning.

The confusion in the plaintiff’s mind arises from' the omission of the word ‘ ‘ thence ’ ’ between the words “Seventh street” and the words “to the place of beginning. ” If it was intended to say to ‘ ‘ Seventh street, the place of beginning” not only would it be a contradiction of an evident fact, but the word “to” would have to be stricken out, because “to,” as a preposition, indicates motion in the direction of place. [Webster.] Following the description around the lot on three sides and arriving at A, the words “to the place of beginning” mean thence to the place of beginning-. Plaintiff contends that it was the intention of the grantor to convey the west twenty-six feet of the fifty-eight-foot lot, and that that intention is shown by the monuments called for in the deed which correct the metes and bounds. When real monuments are called for in the description in a deed they are ordinarily given precedence over distances called for. [Myers v. St. Louis, 82 Mo. 373; Orrick v. Bower, 29 Mo. 210; Evans v. Temple, 35 Mo. 494.] But what plaintiff calls monuments in this description are not .real monuments. A monument is a fixed, visible object. “What the plaintiff calls monuments in this description are “the southwest corner of the portion of the said lot formerly owned by Mary M. Burke, and where she now resides, ’ ’ and, “the northeast comer of a lot formerly owned by Andrew Malcolm,” etc. Those corners as there described are not monuments; if there is anything fixed and visible about them appellant has not in his. abstract called our attention to it. Those corners, as: far as we are informed in appellant’s abstract, are no more established than are the disputed lines of description in the Jones deed. From the fact that the grantor who formerly owned fifty-eight feet had, previous to the making of this deed to the Joneses, sold the east thirty feet to Mrs. Burke, it is reasonable to infer that he intended to convey the remaining twenty-eight feet by this deed, and of course he could not convey to the Joneses thirteen inches of property that he had already sold to Mrs. Burke, but if the description in the deed called for this thirteen-inch strip and the Joneses put their deed on record and afterwards took possession of the land described in their deed, including this, thirteen-inch strip, their possession was under color of title. In 1884 Luster, the grandfather of the Joneses, then minors, bought the thirty feet of Mrs. Burke and while he owned it he built the house whose east wall is now the cause of this lawsuit. For more than twenty years the Joneses have been in open and visible possession of the house and lot, exercising the acts of ownership over it, and there was no question of their title or right to the possession until a short while before this suit was brought.

From the fact that Luster in 1886 sold the thirty-foot lot to Sears, it is plausibly argued that when he built the house for- his grandchildren and located the east wall thirteen inches over on his own land he did so by mistake, and that when he sold to Sears he was not aware that such a mistake had been made. There is, however, no conclusive legal presumption to that effect. And if it were the fact it would not change the character of the defendants ’ possession. They were then in possession by their guardian, their father, and there is no evidence tending to show that they had entered into or held possession as on a disputed or doubtful line, intending to yield it when the true line should be discovered. There is nothing in the evidence to introduce such an idea in the case. Their possession and acts of ownership have been unconditional and unequivocal.

Appellant relies on the fact that when he had the survey made, a short while before bringing this suit, he spoke to Mr. Jones on the subject and offered to have the wall torn down, and rebuilt at his own expense, on what he claimed was £he true line, “fix up the butcher shop” and give Jones the use of the wall as % long as the butcher shop remained as it then was. Jones agreed to it subject to the agreement of Mrs. Cassell;.the agreement was written, signed by Jones, and sent to Mrs. Cassell for her approval and signature, but she refused to sign it, and so the matter ended. Appellant contends that that action on the part of Jones showed that the possession was not adverse, and he asked an instruction to that effect which the court refused.

In the first place there was no such agreement consummated. Jones could not agree to dispose of his sister’s land, and he only agreed to execute the contract, even as to his own interest, on the condition that his sister would sign it. He testified that he agreed to it as a compromise, by which we infer he meant to avoid a lawsuit. The wall which Jones and his sister owned jointly could not be destroyed without the consent of both. Plaintiff seeks to draw from the fact of Jones’s willingness to sign the agreement, the inference of his acknowledgment that the possession of himself and bis sister was not adverse, but even if such an inference could be drawn it could not have the effect to reach back twenty years and defeat title already acquired.

Plaintiff introduced in evidence tax receipts showing that he and those under whom he claims had paid taxes on “The undivided east frac. Lot 5, Block 57,” from 1892 down to 1905 inclusive. But that description is indefinite. How large the fraction on which the taxes were paid is not shown in the abstract.

The trial court took the correct view of the law.

The judgment is affirmed.

All concur.


author: WOODSON, J. GRAVES, J.

text:
    WILLIAM J. SCOTT, Appellant, v. FRANCES TAYLOR and F. G. ALTMAN et al.
    Division One,
    December 23, 1910.
    1. PLEADING: Duplicity. A petition which unites in one count several distinct, independent and unconnected matters, is duplicitous, or multifarious, which means the same thing; for instance, a petition which joins matters esc contractu, and ex delicto in the same count should be stricken out as in violation of the statute against duplicity (Sec. 613, R. S. 1899).
    2. -: -: Redeeming Under Mortgage: Attorney’s Fees: Conversion: Accounting. A petition which in one count asserts plaintiff’s right to redeem under a deed of trust, after foreclosure and purchase by the defendant mortgagee, and also demands judgment for attorney’s fees for services rendered by plaintiff to the same mortgagee,.both of which allegations state rights arising out of contract; and which also charges the conversion by said mortgagee of diamonds deposited with him, and the fraudulent conveyance by the mortgagee of the property covered .by said deed of trust, to other defendants with knowledge, which are matters ex delicto, is duplicitous, and should be stricken out, although all these things seem to be brought in as parts of a bill for an accounting.

      3. -: -: Amendment: Duplicate. Where plaintiff’s petition is adjudged duplicitous and he is given leave to file an amended petition, but instead of doing so files a duplicate of the one stricken out, the court should strike this last from the files, and enter judgment for defendant.
    4. APPEAL FROM RULING ON MOTION: Several Grounds: Presumption. Where two or more grounds are assigned in a motion for striking out a petition, and the motion is sustained, with no designation of the ground on which the ruling is based, it will not be presumed on appeal that the court sustained both grounds. [Separate Concurring Opinion by GRAVES, J., in which majority concur.]
    5. PREJUDICE OF JUDGE: Power to Pass on Motions: Change of Venue. The fact that a judge declares himself prejudiced against a litigant does not of itself, in the absence of an application for a change of venue, absolutely disqualify him to pass upon a motion attacking the sufficiency of such litigant’s pleading.
    Appeal from Jackson Circuit Court. — Now. John G. Parh, Judge.
    Aveirmed.

      Wm. J. Scott pro se.

      Grcmt I. Rosenziveig for respondents.
   WOODSON, J.

Tire plaintiff prosecutes this appeal from an order and judgment of the circuit court of Jackson county, striking out three petitions filed in the cause by him in compliance with sections 613 and 623, Eevised Statutes 1899, and without prejudice dismissing plaintiff’s case.

Formal parts omitted, the original petition stricken out reads as follows:

“Now comes plaintiff herein and for his cause of action against defendant says:
“First. That on or about the'first day of June, 1893, plaintiff was indebted to one William H. Mc-Lellan in the sum of two thousand seven hundred and fifty dollars on a certain promissory note, dated the 5th day of May, 1888, and bearing interest at ten per cent per annum on its face, and secured by a deed of trust of even date, recorded in the office of the Recorder of Deeds of Jackson county, Missouri, on the 5th day of May, 1888, in Book B-307, page 356, on the following described real estate situate, lying and being in the county of Jackson and State of Missouri, to-wit:
“Commencing at a point two hundred and sixty-eight and five-tenths feet east and two' hundred and twenty-five feet south of the northwest corner of a certain six and one-half acre tract of land in the northwest quarter of section ten, township’ forty-nine, range thirty-three, conveyed by Cynthia M. C'lasby and husband to William J. Scott by deed dated April 10, 1882, and recorded in the Recorder’s office of Jackson county, Missouri, at Kansas City, in Book B-75> page 117, thence south seventy-five feet on the line of and parallel with the west line of Chestnut avenue as established by an ordinance of the City of Kansas thence west one hundred and thirty-three feet to a point, thence north and parallel with the aforesaid line running south seventy-five feet, thence east and parallel with the aforesaid line running west one hundred and thirty-three feet to the place of beginning.
“That in consideration of the fact that property and real estate had greatly depreciated in value about the first day of June, 1893, and' that plaintiff had paid the said William H. McLellan large sums in interest upon the note secured by-deed of trust upon the property aforesaid, said McLellan about said date offered to turn over the note and security aforesaid to.plaintiff upon the receipt of the sum of one thousand dollars; that plaintiff thereupon procured defendant E. G. Altman to advance the one thousand dollars for him and to take over the note and security aforesaid -upon the following terms and conditions then and there agreed upon between them, namely: That said P. G. Altman should advance plaintiff the one thousand dollars necessary to take up the note and mortgage of McLellan which were to he held by said Altman as security for such advances and other expenses incurred by him in protecting the property; that as soon as the property had recovered from the depression and panic then existing, if plaintiff had not repaid to said Altman the aforesaid one thousand dollars with eight per cent interest and all taxes paid by him, the property should be sold when the market price was mutually satisfactory and from the proceeds of the sale said P. G. Altman should first receive the one thousand dollars advanced and expenses incurred in connection with said property, together with interest at eight per cent per annum upon the entire sum from the dates of the payment thereof.
“Second. Prom the remaining proceeds of sale one-half or as much of said half as may be necessary was to be applied to the payment of any amount which might then be due from plaintiff to said P. G. Altman upon other accounts. All the balance remaining to be the property of plaintiff.
“But shortly after said date said Prank G. Altman attempted to advertise and sell the property aforesaid under the deed of trust aforesaid and a trustee’s deed purporting to convey the property above described was made on the 23d day of September, A. D. 1893, recorded in Book B-543, page 418, in the office of the Recorder of Deeds of Jackson county, Missouri, at Kansas City.
“That the said trustee’s deed executed in pursuance of such attempted sale by said trustee and the affidavit of publication attached thereto and made a part thereof shows on its face that the notice required by the trust deed aforesaid to be published for thirty days in a newspaper printed and published in the City of Kansas, was published for twenty-three days and no more, and by reason thereof said sale and trustee’s deed are wholly without force and effect to convey the equitable title to said property to defendant P. G-. Altman, or bar the plaintiff’s equity of redemption in and to the property above described.
‘‘That plaintiff has for eight years last past urged defendant P. G. Altman on many occasions to furnish plaintiff an accounting of the amount paid out by him, together with the amount of taxes and other expenses incurred by him, in and about the preservation of the aforesaid property, but that defendant P. G. Altman though frequently promising to do so has wholly failed and refused to furnish any such statement. That plaintiff does not know and has no means of knowing what the amounts of said disbursements are, and said P. G. Altman refuses to cancel said note or satisfy said deed of trust, although plaintiff has long since paid the same and performed all the conditions required by said deed of trust, and said Altman refuses to convey said property to plaintiff although requested to do so.
“Plaintiff further states that there has been a running account between him and defendant P. G. Altman, and that the same has been running over several years, that he believes and charges the facts to be that upon a settlement of said account a large balance would be found in his favor.
“Wherefore, plaintiff hereby prays an accounting and hereby tenders to defendant P. G. Altman the amount, if any, that may be found due him upon the full accounting of the amount due and owing by plaintiff after allowing all just credits and offsets.
“Wherefore, plaintiff prays enforcement of his equity of redemption that said notes and deed of trust be extinguished and satisfied and that the legal and equitable title to the property above described be vested in him and for such other and further relief as to equity may appear just and proper.
‘ ‘ That defendant P. G. Altman, on the 22d day of January, 1901, made, executed and delivered a certain promissory note for six thousand dollars with interest at six per cent per annum to Frances Taylor, and secured the same by deed of .trust upon the property above described to Grant I. Rosenzweig, trustee for said Frances Taylor; that subsequently thereto and on the 22nd day of April, 1903, defendant F. G. Altman made, executed and delivered a certain promissory note to Rose Altman for the sum of five thousand dollars and interest at six per cent per annum, secured by deed of trust on the property above described and other property, to Grant I. Rosenzweig, trustee for said Rose Altman; that said deeds of trust were made and taken with due notice to all parties thereto of plaintiff’s equity of redemption in said property above described.
“Wherefore, plaintiff prays that said deeds, of trust be set aside, cancelled and held for naught as against said property.
“That plaintiff deposited with said F. G. Altman, defendant, diamonds that value two thousand two hundred dollars, which said Altman still retains or has converted to his own use.
“That defendant F. G. Altman is indebted to plaintiff in the sum of four thousand three hundred dollars for legal services rendered at his special instance and request, all of which is now due and wholly unpaid and which sum said services are reasonably worth.
“Wherefore, plaintiff prays judgment for said sum of four thousand three hundred dollars with interest and costs.
“Wherefore, plaintiff prays the court to decree the title to the property heretofore described to be in plaintiff, subject to the payment of such sums, if any, as may have been advanced by Frank G. Altman in the payment of taxes and assessments upon said property ; that -said first described note and mortgage be declared paid and satisfied on the record; that the last mentioned deeds of trust to Prances Taylor and Rose Altman be set aside as against said property; that an accounting be bad to determine the accounts, between plaintiff and defendant P. Gr. Altman, and of the diamonds as aforesaid deposited as security, and on all matters unsettled between them, and that upon sucb accounting* a decree may be entered of sucb sum as may be found owing plaintiff and for bis. costs herein expended.”

Without burdening this statement with a copy of all the petitions tiled, it will suffice to state that all of them were substantially and practically duplicates of the original, the one before set forth. All of the changes made in them were trivial and immaterial.

The first motion filed by defendants prayed.the court to strike out the petition for the reason that it was duplicitous.

This motion was sustained, and plaintiff was granted leave to file an amended petition on or before September 1, 1904. On the last named date plaintiff filed his first amended petition, which was practically the same as the original. To this petition defendants filed a second motion to strike out. This petition and motion were not passed upon by the court, presumably for the reason that plaintiff abandoned the petition by filing his second amended petition on November 22, 1904, which was substantially the same as the first.

To this, the second amended petition, the defendants filed their third motion to strike out, which was as follows:

“Now come defendants and pray the court to strike out the plaintiff’s second amended petition in this cause for the reason that upon July 9', 1904, the court struck out the plaintiff’s original petition in 'this cause, because said original petition was duplicitous; upon July 13,1904, the court allowed the plaintiff until on or before September 1, 1904, in which to file an amended petition, all the said proceedings being at the April term, 1904, of this court; that the plaintiff did not file any amended petition within the time allowed by the court as aforesaid nor at any other time,hut did file a petition upon September 1, 1904, which the plaintiff styles a first amended petition, which first amended petition did not vary in any substantial manner from the first petition stricken out by the court, but on the contrary, was substantially a duplicate of the original petition and was in itself duplicitous; that the said April term, 1904, of said court ended upon the 9th day of October, 1904, and the October term, 1904, of this court began on the 10th of October 1904. That thereafter at the said October term, the defendant filed motion to strike out said first amended petition for the reasons aforesaid. That thereafter at said October term, upon November 22, 1904, the plaintiff abandoned the said first amended petition by filing a second amended petition in this cause. And defendants state that said first amended petition was in fact duplicitous and was substantially a duplicate of the original petition, and the filing of said first amended petition was not a compliance with the court’s order or permission to file an amended petition; that the time for such filing (September 1,1904) having expired at the April term aforesaid without substantial compliance by the plaintiff, the plaintiff had no right to file a second amended petition at the subsequent October term of said court; and the defendants further state that said second amended petition is substantially a duplicate of the two prior petitions and is itself duplicitous.
“Wherefore the defendants pray'that all existing petitions in this cause be stricken out and the case be dismissed.”

Thereafter, the motion to strike out the second amended petition herein was by said court sustained, to which ruling of the court plaintiff duly excepted. ■

On March 23, 1905, the plaintiff filed his third amended petition, which was in all respects the same as the previous ones.

On March 28th of the same year the defendants filed their fourth motion to strike out this, the plaintiff’s third amended petition. Said motion is. as follows :

“Now come defendants and pray that the plaintiff’s third amended petition in this cause he stricken out for the reason that the same is duplicitous, and for the further reason that the said third amended petition is substantially the same as two prior petitions, bcth of which' have heretofore been stricken out for duplicity; and for the further reason that the said third amended petition does not comply with the order of the court heretofore made, in that the court heretofore gave plaintiff permission to file an amended petition which should obviate the objection of duplicity, whereas the said third amended petition does not obviate said objection, but on the contrary is itself duplicitous. ’ ’

Thereafter, the motion to strike out the third amended petition herein was by the court sustained, to which ruling of the court plaintiff excepted and still excepts.

Thereafter, February 26, 1907, defendants filed herein motion for judgment herein, which said motion is in words and figures as follows:

“Now come defendants herein and pray for judgment in this cause for the reason that three petitions in this cause have been filed by plaintiff-and have been adjudged insufficient, and have been stricken out by the court.”

On March 2, 1907, said motion for judgment was by the court sustained, to which ruling of the court the plaintiff excepted. And it was further ordered by the court that this cause be dismissed without prejudice. To which ruling and order of the court the plaintiff duly excepted.

I. As previously stated, this is an appeal prosecuted by the appellant from an order and judgment of the circuit court of Jackson county, striking out, three petitions filed in the cause, and dismissing the cause in accordance to the provisions of sections 613 and 623, Revised Statutes 1899. These sections read as follows:

“Sec. 613. Duplicity in pleading is a substantial objection, and any petition or other pleading found subject to such objection shall, on motion, be stricken out.”
“Sec. 623. If a third petition, answer or .reply be filed and adjudged insufficient as above, or the whole or some part thereof be stricken out, the party filing such pleading shall pay treble costs, and no further petition, answer or reply shall be filed, but judgment shall be rendered. ’ ’

After a careful reading and comparison of the various petitions filed in this cause, there is no escape from the conclusion that each and all of them are practically duplicates of the original, which is set out verbatim et literatim in the statement of the case. That being true, it will only be necessary for us to pass in judgment upon the original petition filed in the cause; and what is said regarding it will apply with equal force to all of the subsequent ones filed herein.

The first motion prayed the court to strike out the-petition for the reason that it was duplicitous- in character, while the subsequent motions were not confined to the duplicitous character of the petitions, but also asked that they be stricken out for the additional reason that they were duplicates of the original and were not amended petitions within the meaning of the order of the court striking them out and ordering an amended petition to be filed. The record discloses the fact that all of these motions were sustained.

Upon that state of the record two questions are presented: First, were the petitions duplicitous, and therefore obnoxious to the statutes before quoted; and, second, was the circuit court war anted under the law in »striking out the amended petitions for the reason that each and all of them were duplicates of the original, which had been stricken out for duplicity?

Addressing ourselves to the first proposition before stated, it becomes necessary in the first instance to ascertain the meaning of the word “duplicity” as used in section 613, before mentioned. In the absence of a definition given by the Legislature, the words of a statute are to be interpreted according to .their ordinary and common meaning and acceptation. [State ex rel. v. Shepherd, 218 Mo. 656.]

This court in discussing this statute has frequently used the words duplicity and multifariousness as synonymous terms. The meaning of the word “duplicity” as used in this statute has been many times defined by this court, and a few quotations' from the adjudications thereof will clearly show the meaning of that word.

In Clark v. Covenant Mut. Life Ins. Co., 52 Mo. 272, l. c. 275, this court, in defining the word “multifariousness,” said: “'A bill is said to be multifarious when distinct and independent matters are impropr erly joined whereby they are confounded, as, the writing in one bill of several matters perfectly distinct and unconnected,’ against one defendant, or the demand of several matters, of a distinct and independent nature, against several defendants in the same bill.”

In Jones v. Paul, 9 Mo. 293, l. c. 295, this court not only defines the word but clearly states its application in the following language:

“The bill first charges the defendants, Paul and wife, with having executed a deed of conveyance to their codefendant Marshall, which although unconditional on its face, was intended by the parties thereto as a mortgage to secure the sum of $110, due from Paul to Marshall. Púrsuing this view of the transaction, until complainant obtains bis judgment, files bis transcript, and has an execution issued which, will reach the real estate of Paul, the complainant then abandons the idea of a mortgage, and charges that the deed was made in fraud, to hinder and delay the creditors of Paul. In confirmation of this latter charge, the bill alleges that since the conveyance of the lot, Paul has assigned to Marshall a demand of some character or description, which he had against the county of Platte, amounting to about four hundred dollars, to prevent his creditors from getting it, and that Marshall having received a large amount of that fund, refuses to render him an account thereof.
“As an excuse for thus blending in one bill two distinct causes of action, the complainant urges that not knowing precisely the character of the transaction, which he calls upon the chancellor to unravel for him, he has been driven from necessity to present his bill with a double aspect.
“This court cannot recognize any such necessity, but holds it to be the duty of the complainant to ascertain his rights, and the means adopted by others to defeat or withhold from him the exercise and enjoyment thereof, before he applies to a court of equity for re- . lief. Then he will be able to present his case with clearness and brevity. If he does not know what are his rights, how is he prepared to say that his rights have been violated? Shall the mere vague belief or suspicion of a complainant, that he has been defrauded or wronged in one of two modes, be the basis of the action of a court of chancery?
“The bill in chancery answers to the declaration in a suit at common law; as at common law, so likewise it is desirable in chancery, that the matters in controversy shall be narrowed down to as few issues as practicable. This rule is not only beneficial to parties litigant, who thereby have an additional guaranty that justice will be afforded, but likewise due to the courts as it tends to divest canses of much of their complication and embarrassment. The rule should not he lost sight of in endeavoring to carry out another favorite object of a court of equity, the prevention of a multiplicity of suits.
“In Mitford’s Chancery Pleading, 181, it is laid down as a general principle that the court will not permit the plaintiff to demand by one bill, several matters of different natures against several defendants, and the reason assigned is that it would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the state of the several claims of the other defendants, with which he has no connection. The same principle is recognized in the case of Fellows v. Fellows, 4 Cowen, 700; 2 Madd. Ch. 294; 2 Harr. Ch. Pr. 289; 1 East 227.
“In the case of Gaines v. Chew, 2 Howard 642, the court says: ‘ That a bill which is multifarious may be demurred to for that cause, is a general principle, but what shall constitute multifariousness is a matter about which there is a great diversity of opinion. In general terms a bill is said to be multifarious which seeks to enforce against different individuals, demands which are wholly disconnected.’ After quoting from the case of Campbell v. Mackay, 7 Simon 564, where it is said that, ‘to lay down any rule, applicable universally, or to say what constitutes multifariousness as an abstract proposition, is, upon the authorities, utterly impossible,’ the judge then proceeds to declare that ‘ every case must be governed by its own circumstances; and as these are as diversified as the names of the parties, the court must exercise a sound discretion on the subject. ’
‘ ‘ The two grounds of relief sought for in this bill are wholly dissimilar and disconnected. If, as first charged in the bill, the deed is a mortgage, then the defendants should not be forced to prepare themselves to defend against the charge of fraud. And if the transaction be a fraudulent one, there will be no necessity of inquiring whether the deed, absolute on its face, was intended by the parties to be a mortgage. Which question shall the court investigate? Or shall the investigation of both proceed at the same time? If so, the proceedings are not only rendered embarrassing and complicated, but the defendants, if acquitted of fraud, will be subject to greater inconvenience and cost than they should be, and for what reason? Not perhaps in consequence of any wrong committed by them, but because the complainant has not taken the trouble to inform himself correctly as to his rights.”

And the Kansas City Court of Appeals in a well considered ease, Harris v. Wabash Ry. Co., 51 Mo. App. 125, l. c. 127, in discussing this question, said: “The petition in this case, which we have here quoted in haec verba, is certainly an instance of very bad pleading, sadly wanting in that ‘plain and concise statement of facts constituting a cause of action’ demanded by our code of civil procedure. It pretends the statement of one and only one cause of action, and yet comprises within its allegations such a conglomeration or mixture of several causes of action as to well cause confusion in the minds of court and opposing counsel, and becloud the real intention of the pleader who drafted the paper. ’ ’

Seven Ency. Pl. and Pr. 236, explanatory note: Duplicity (avoiding all confusion) does not exist where “a single demand is sought to be supported by more than one fact, or set of facts, any one of which would be sufficient for that purpose,” but does exist (p. 237) where “more than one fact, or set of facts, for the recovery of a single demand, any one of which would justify the recovery.” And (note p. 240): “The test is to see whether a single issue can be made to controvert the pleading, by denying any one material fact.”

Three Words and Phrases, 2267: “Duplicity is defined to be a joinder of different grounds of action to enforce a single right.”

Jamison v. Copher, 35 Mo. 483, and Southworth v. Lamb, 82 Mo. 247, show that matters of contract and tort are so foreign to each other that they cannot be united in the same petition, even in separate counts.

Beattie v. Gerardi, 166 Mo. 156, shows that the joinder of matters not affecting all of the parties is impossible.

Scarritt v. Schmelzer, 110 Mo. App. 413, shows that liquidated and unliquidated claims are so wide apart, that they cannot come together in a single case.

The foregoing authorities sufficiently define the words “duplicity” and “multifariousness” to give us a clear insight as to their meaning as used by -the Legislature. We will now apply those definitions and the rules of pleading there announced to the facts of the case at bar, and thereby determine whether the various petitions filed in this cause were obnoxious to the rule of duplicity or not.

Counsel for respondents has made a clear, brief and true analysis of the petition which would be difficult to improve upon, and for that reason I here copy the same in haec verba.

“Stripped of verbiage, the petition recites (1) that in 1882 Scott made a mortgage upon Scott’s land to McLellan, and that 'at Scott’s request, F. G. Altman bought this note from McLellan, (2) upon an alleged agreement between Altman and Scott that Altman would carry the loan for Scott until some indefinite time in the future when the land might enable Altman, to get his money and expenses out of the same, with division of any excess between Altman and Scott; (3) that in violation of that agreement, about three months later, Altman foreclosed the deed of trust and bought in the property for himself; (4) that the foreclosure itself was void, because the deed of trust required thirty days’ publication and publication was made only for twenty days; (5) that Altman lias spent a lot of money in taxes, etc., the amount of which Scott does not know; (6) that there has been a running’ account for several years between Scott and Altman which ought to create a balance in Scott’s favor; (7) that in 1901 Altman mortgaged the property to Frances Taylor for $6000, by deed of trust to Rosenzweig as trustee, and in 1903- mortgaged the property for a further sum of $5000' to Rose Altman by deed of trust to the same trustee ; (8) that at some unstated time Scott deposited with Altman diamonds worth $2200 which Altman has converted to his own use; (9) that at some unstated time Scott performed legal services for Altman (as his attorney) in some unstated matter, for which Altman owes him $1300'; (10) and scattered through the petition are prayers that Altman account to plaintiff; that Scott be allowed to redeem the land; that the deeds of trust be cancelled; that the diamonds and legal services be brought into the accounting, and that Scott have judgment for the legal services and the diamonds.”

From this analysis it will be see,n that the petition unites in one count several matters of distinct natures, against several defendants, and several different grounds of action, which cannot be property united in the same petition, to-wit, matters ex contractu and ex delicto. Of the former is the claim of right made by plaintiff to redeem from the mortgage assigned to defendant F. G. Altman, and for the recovery of attorney’s fees; and of the latter is the conversion of the diamonds mentioned in the petition, and the alleged fraudulent conveyance of the property to Rosenzweig, trustee, to secure $6000, borrowed by defendant F. G. Altman, from defendant Frances Taylor, and $5000 borrowed by him from Rose Altman. It is horn-book law that those distinct causes of action cannot be property joined in the same petition. [Jamison v. Copher, 35 Mo. 483; Southworth v. Lamb, 82 Mo. 247.] If joined in the same petition, then the petition is bad for duplicity within the meaning of said section 613. [See authorities previously cited.] It is equally clear that Frances Taylor and Rose Altman are by no manner of means interested in the causes of action stated, regarding the attorneys’s fees alleged to be due from F. G. Altman to plaintiff; or in the diamonds alleged to have been converted by said F. G. Altman.

The joinder of Frances Taylor and Rose Altman with F. G. Altman in the same suit to enforce the several distinct causes of action alleged against each is bad, and also violates the statute which prohibits duplicity. [See Jones v. Paul, supra; Clark v. Covenant Ins. Co., supra; Harris v. Railroad, supra; Cutler v. Cook, 77 Mo. 388; Scarritt v. Schmelzer, 110 Mo. App. 413.]

We are, therefore, clearly of the opinion that the various petitions filed in this cause were duplicitous, and that the circuit court properly struck them out.

The second proposition presented regards the authority of the court to strike out the amended petitions simply for the reason that they were duplicates of the original, which was stricken out for duplicity. Counsel for plaintiff seems to contend that this question is not properly before this court.

We do not concur in that contention, for the reason that a.11 the petitions, and motions filed to strike them out are preserved in the record. The motions ask the court to strike out the petitions for two reasons: First, because of duplicity; and, second, because they were duplicates of the original which had been stricken out. The record simply shows that these motions were sustained; and, in the absence of any statement to the contrary, this court must presume that the circuit court sustained the motion for both grounds stated therein. To hold otherwise would almost be equivalent to overruling the motions, for the reason that there is nothing contained in this record which shows upon which ground they were sustained. We cannot say the ruling of the court was based upon the first ground assigned, and- not upon the second, and vice versa. Besides that, this court is a court of appeals, and has power only to review matters passed upon, either directly or by necessary implication, by the trial court; and if we do not at least presume that said court passed upon both grounds stated in the motion. then it is self-evident that we have no right or power to review both of them; and if not both of them, which, as before suggested? To my mind, in the absence of a showing to the contrary, as is the case here, there is no escape from the conclusion that we must presume that the trial court passed upon both grounds of the motion.

Recurring then to the question, is it proper practice to file a motion to strike an amended petition from the files for the reason that it is a duplicate of a former petition which has been adjudged bad. This question was touched upon but not decided in an opinion by Judge Lamm in the case of Diener v. Star-Chronicle Publishing Co., 232 Mo. 403. As there stated, it is a novel point. Counsel for neither party have cited any authority bearing upon the proposition, and after a diligent search we have been unable to find any. But looking at the proposition from a common-sense standpoint, I am unable to see any valid objection that can be urged against that practice. If the original petition was bad for duplicity and stricken out for that reason, and if the plaintiff should refile it or a duplicate thereof, why should not that question be considered adjudicated, and the dead and worthless paper be stricken from the file on motion calling the court’s attention to that fact? I must confess I am unable to see any good reason for denying that plain and sensible remedy. By this means plaintiff would be barred from filing a duplicate and compelled to file an amended petition, ao cording to the leave granted by the court; but, if he may persist in filing duplicates, there is no way to stop that useless and dilatory practice short of adjudicating the same question over three times under section 613, and then enter judgment for defendants under section 623, as was done in the ease at bar, which took from September 22, 1903, to March 22, 1907, nearly four years, for defendants to have this judgment of dismissal entered under said sections of the statute. The court has the inherent power to compel obedience to its orders and when it gave appellant leave to file an amended petition in the cause, that did not mean leave to refile the one.adjudged bad or a duplicate thereof. By such disobedience of the court’s order appellant was in default, and the court had the inherent power to so hold and strike from the files the dead petition, and .refuse to grant further leave to file an amended petition, as contemplated by said section 613', which requires the court to grant such leave where an amended petition has in fact been filed in pursuance to the court’s order, but no such requirement is made of the court where its order is disobeyed by filing á duplicate and not an amended petition. Clearly there should be some shorter mode of bringing such matter to- a determination, and at the same time to avoid such vexatious and absolutely useless litigation.

We are, therefore, of the opinion that the court properly struck out the so-called amended petitions, because they were not in fact but in reality duplicates of the original one which was stricken out on motion.

II. It is next insisted by counsel for appellant, that Judge Brumback, the judge who adjudged the first amended petition bad, committed reversible error, for the following reasons:

When the second motion came on for hearing, before Judge Brumback, the same was duly argued and submitted. Subsequently, in passing upon the motion, the judge stated that while the court would pass upon the motion (the law of which was quite obvious), the court would not hear the main issues in the case, for the reason that the court was. prejudiced against the plaintiff, Scott. Thereupon, the court struck out the petition, but gave the plaintiff ten days in which to file an amended petition, and transferred the cause to Judge Park’s division of the court.

Appellant neither filed an application for a change of venue from Judge Brumhack, nor asked leave to file one on account of his prejudice. Notwithstanding that omission, counsel for appellant strenuously argues that Judge Brumhack erred for not granting him a change of venue. Many cases are cited in support of this contention, but upon an examination we find that each and every one of them were based upon formal applications for a change of venue; and they are for that reason not in point. However, two of the very cases counsel for appellant rely upon (Levin v. Railroad, 140 Mo. 630, and Kansas City Belt v. Railroad, 118 Mo. 620) in unequivocal terms hold that although the ruling on an application for a change of venue was erroneous, nevertheless “when defendant appeared to the suit in that (the second) court, its jurisdiction was complete."

While Judge Brumhack’s conduct may have been sufficient ground upon which to base an application for a change of venue, yet no such application was in fact made. And this court in the case of Eudaley v. Railroad, 186 Mo. 404, said that “the right to a change of venue comes only from the statute. It can be granted by the court only when the party applying brings his case within the scope of the meaning of the statute. ’ ’

There is no statute which renders a judge feeling or expressing himself as prejudiced against the personality of a litigant, by that act absolutely disqualified to hear any portion of any cause.

There are expressions in a case cited by counsel for appellant which on the surface seem to lend color to his position; but, when analyzed, even that color is dissipated. That case is Guy v. Railroad, 197 Mo. 174, l. c. 181, and the language referred to is as follows: “ ‘It would seem that a court against, whom so grave a charge as that of partiality is made (however frivolous or false the charge might be deemed) would gladly avail itself of an opportunity to be freed from trying a cause, the trial of which might be connected with such serious imputation. ’ The conclusiveness of the affidavit of the party making the charge against the judge follows from the very necessity of the case, but that necessity does not exist in reference to- the charge of prejudice against the other judges.” By reading that case it will be seen that a formal application for a change of venue was tiled therein, and, therefore, what was there said related to that application. But, as stated by counsel for respondents, “We fail to see that the expression that under certain circumstances a judge ‘ would gladly free himself’ is equivalent to a statement that the judge must free himself, or that the judge is disqualified, or that (where the right of the complainant is purely statutory) a change must be granted in a case not provided for by statute at all. ’ ’

This insistence is., therefore, decided against the appellant.

Finding no error in the record, the judgment should be and the same is hereby affirmed.

Lamm, P. Jand Valliant and Graves} JJ.} concur, in separate opinion by Graves, J.

SEPARATE CONCURRING OPINION.

GRAVES, J.

I fully concur in the result reached by Judge Woodson in this case. Further I concur in all that he says therein, except the following remarks:

‘ ‘ The record simply shows that these motions were sustained; and, in the absence of any statement to the contrary, this court must presume that the circuit court sustained the motion for both grounds stated therein. To hold otherwise would almost be equivalent to overruling the motions', for the reason that there is nothing contained in this record which shows upon which ground they were sustained. We cannot say the ruling of the court was based upon the first ground assigned and not upon the second, and vice versa”

These motions were bottomed upon two grounds, as stated in the principal opinion. The record entry simply recites that such motions were sustained. But from this it is not presumed that the court sustained the motion upon both grounds. A motion to strike out a petition may contain many .grounds, or at least several grounds. If the court finds one ground to be well taken then the motion should be sustained, but because the motion is sustained and record entry made thereof, it -raises no presumption that the court had sustained each separate ground of the motion. Of course there might be a presumption that the court had considered all grounds of the motion, but when we consider that under the law it was the duty of the court to sustain the motion if one ground was good, it will not do to say that there is a presumption that the court sustained all of the grounds of the motion. In motions of this character the law does not require the court to point out the ground upon which it is sustained. It is sufficient for the court to say that the motion is sustained, and if there be any one good ground in the motion, the judgment nisi will be sustained.

Even considering motions for new trial, where we have a statute requiring the court to designate the ground upon which the motion is sustained, if sustained at all, yet we hold, in cases where the court has failed so to designate, that if there is one good ground in the motion, the action of the court will be sustained here, although the court failed to designate. Not only so, but if tbe court does designate, and we find that the ground designated is not a good ground, yet if we further find that in such motion there is a good ground, the action of the court nisi will be upheld here.

In the case at bar both grounds of the motion were well taken and the action of the trial court could well be sustained upon either. The objection I have to the portion of the present opinion quoted above is that it announces that we should presume that the court nisi had sustained each ground of the motion. In this I think the opinion is in error, but otherwise it is correct.

Lamm, P. J., and Valliant, J., concur in these views.


text:
    MAYO S. KEATOR v. HELFENSTEIN PARK REALTY COMPANY, Appellant.
    Division One,
    December 23, 1910.
    L PLEADING: Specific Performance: Description of Land: Exhibit. An exhibit attached to the petition, even though it be a copy of the contract sued on in specific performance, or the contract itself, is no part of the pleading; and if the petition -with sufficient accuracy describes the land it cannot be held that it fails to state a cause of action in that respect, even though the ■ description in the contract sued on and attached may be insufficient.
    2. SPECIFIC PERFORMANCE: Sufficient Description of Land in Contract. That is certain which may be made certain. The land need not be so fully and accurately described in the contract to sell that it can be identified from a mere reading of the paper; it is sufficient if it affords the means whereby the identification may be made perfect and certain by parol evidence.
    2. -: -: Extension of Street Line. A contract which describes the north line of the lot as “the westerly extension of the south line of Oak street, yet to be surveyed,” contains a' sufficiently accurate description of the north line of the lot to authorize the court to decree specific performance. The words “yet to be surveyed” refer to the north line of the lot; and the contention that a “westerly extension of the south line of Oak street may vary at any angle within ninety degrees, curved or straight, and still be literally in a westerly direction,” cannot be approved, for if the south line of the street is straight its extension must be straight.
    Appeal from St. Louis County Circuit Court. — No». Jno. W. McElhinney, Judge.
    Arríeme».

      Edwin W. WIills for appellant.
    (1) Errors on the face of the record will be reviewed though there is no bill of exceptions. Tower v. Moore, 52 Mo. 118; State v. Griffith, 63 Mo. 545; Ryan v. Growney, 125 Mo. 474. The question whether the petition states a cause of action may be raised the first time on appeal and need not be saved by a bill of exceptions. Sheehan v. Simms, 28 Mo. App. 64. (2) Equity requires, as preliminary to specifically enforcing an agreement, that its terms shall be certain. Butler v. Murphy, 106 Mo. App. 287; Story’s Eq. Jur., secs. 723, 736, 751; Fry, Spec. Perf., 133; Mastín v. Halley, 61 Mo. 196; Underwood v. Underwood, 48 Mo. 527.

      Byron F. Babbitt for respondent.
    (1) The description of the premises in controversy is sufficiently definite and certain to authorize a decree for specific performance, and the petition therefore states a good cause of action. Black v. Crother, 74 Mo. App. 480; Philipp v. Swank,-120 Pa. St. 76; Smith v. Wilson, 160 Mo. 657; Sailor v. Gilfillan, 73 Mo. App. 152; Springer v. Kleinsorge, 83 Mo. 152. (2) The westerly extension of the line previously known to be by record a straight line with a fixed bearing east and west, must and can only be a straight westerly extension or production, or prolongation in the same direction of the said line. Mayor v. Quachita Parish, 47 La,. Ann. 1061; In re Charlotte Street, 23 Pa. St. 286; Seattle v. State, 7 Wash. 150.
   VALLIANT, J.

This is a suit for the specific performance of a contract for the sale of land. Defendant filed a demurrer to the petition, which was overruled, and then filed its answer, a general denial. The cause came on for trial, which resulted in a judgment for the defendant, dismissing the plaintiff’s petition. Plaintiff filed a motion for new trial, which the court sustained, and from the order sustaining the motion for a new trial the defendant has appealed.

There is no hill of exceptions in the record and we therefore do not know what the evidence was or what were the proceedings at the trial. But the- defendant insists that the plaintiff’s petition does not state facts constituting a cause of action, and for that reason on the face of the record the judgment should have been for the defendant. The petition is in due form, it states the terms of the contract, which was in writing, and all other facts necessary to make out a case for specific performance, if it sufficiently describe© the land. The only point on which appellant relies to sustain its demurrer to the petition is the alleged insufficient description of the land. That description is as -follows: “A certain lot, tract, or parcel of land situated in Webster G-roves, in the county of St. Louis, State of Missouri, bounded and described as follows: An unimproved lot on the north side of the Missouri Pacific Railroad, bounded on the north by the westerly continuation in a straight line of the south line of Oak street, bounded on the east hy a line one hundred and forty-nine feet and two inches, more or less, in a westerly direction from and parallel to the western boundary line of lot thirty-two in Oak G-roves addition, as per the plat of said addition now recorded and on file in Plat Rook No. 1, at page 106, in the office of the recorder of deeds, in St. Louis county, bounded on the south by the right of way of the Missouri Pacific Railroad, and bounded on the west by a line one hundred feet in a westerly direction from and parallel to the eastern boundary aforesaid, said lot having a width of one hundred feet by a depth of two hundred sixty-four and nine-hundredths feet, more or less, on the east side, and three hundred five and thirty-four hundredths feet, more or less, on the west side, a plat or drawing of said lot being hereto attached and marked ‘Exhibit A.’ ”

The petition pleads the contract by its legal effect, as is proper, and then says a copy thereof “is hereto attached and marked ‘Exhibit B.’ ” In that exhibit the description is as follows: “Lot to be located by survey, said lot being on top of hill north of the Missouri Pacific tracks in Webster Groves, Mo., bounded on the north by the westerly extension of the south line of Oak street, yet to be surveyed; on the south by the right of way and parallel to the Missouri Pacific Railroad; on the east by land now owned, or occupied by Mr. Flummerfelt, yet to.be surveyed; and on the west by a line 100 feet west of the east boundary line. ’ ’

We do not understand that appellant contends that the description of the land in the body of the petition is not sufficient, but does contend that the description given in the contract sued on, which is filed as an exhibit, is not sufficient. The specific point on which appellant relies is in what is. alleged to be the uncertain location of the north boundary line of the lot, to-wit: “Said lot . . . bounded on'the north by the westerly extension of the south line of - Oak street, yet to be surveyed.” Appellant in its brief says: “The south line of Oak street might, as far as. this attempted agreement was concerned, have been run in any direction, curved or straight, within an angle of ninety degrees, and still be literally in a westerly direction. ’ ’ •

The case is here on the record proper, and the question is, is the description in the petition sufficient? An exhibit is no part of the pleading. [Pomeroy v. Fullerton, 113 Mo. 440.] The statute requires the written instrument on which the suit is based to be filed with the petition, but it is not to be considered in determining the sufficiency of the pleading. [Bowling v. McFarland, 38 Mo. 465; Phillips v. Evans, 64 Mo. 17; Joy v. Manion, 28 Mo. App. 55.] In the petition this north line is described as “the westerly continuation in a straight line of the south line of Oak street,” and, after describing the other lines, it proceeds, “as per the plat of said addition now recorded and on file in Plat Book No. 1 at page 106 in the office of the recorder of deeds in St. Louis county bounded,” etc., etc., and the dimensions of the lot are stated by feet, inches and fraction of indies. So that any one competent to survey land could, with the description and public records 'there referred to, with certainty locate the land. [Springer v. Kleinsorge, 83 Mo. 152; Black v. Crowther, 74 Mo. App. 480.] In the last named case Ellison, J., said: “The rule may be stated thus: The land need not be fully and actually described in the paper so as to be identified from a mere reading of the paper. But the writing must afford the means whereby the identification may be made perfect and certain by parol evidence. ’ ’ That is the correct rule and applied to this case it makes not only the description in the petition, hut that in the exhibit also, sufficient.

Having said that the exhibit is no part of the petition, and that the description in the petition is sufficient, it is perhaps unnecessary to express an opinion as to the sufficiency of the description in the exhibit, but since the cause is to go back to be tried again and since counsel on both sides have discussed the case as if the exhibit was to be taken as part of the petition we deem it better to'consider, also, appellant’s proposition that the description in the exhibit is not sufficient to justify the court in decreeing a specific performance. The line alleged to be uncertain is thus described in the exhibit: "the westerly extension of the south line of Oak street, yet to be surveyed.” That means that this north lin» which is to be an extension westerly of the south line of Oak street is yet to be surveyed. Counsel argue that the extension of the south line of Oak street westerly may vary north or south at any angle within ninety degrees and still conform to the direction called for. If the extension were drawn with such an angle it would not be an extension of the south line of Oak street. If that line is straight the extension must be straight. Therefore the south line of Oak street being given,' and that being a public street in the town of Webster Groves, the exhibit gives a surveyor all the information he requires to enable him to survey the route and mark the north boundary line of this lot. That is all that the law requires. Id cerium esi quod cerium 'reddi potest. When the cause comes on for trial again evidence of a survey and plat founded on the data given in the contract will be competent, and if with that evidence the chancellor finds the description given in the petition substantially correct, it will be sufficient.

The judgment is affirmed.

All concur.