source: Caselaw Access Project

author: BOND, C. PER CURIAM.

license: Public Domain

text:
    A. W. THOMPSON et al. v. W. W. PINNELL, Appellant.
    Division One,
    November 29, 1911.
    1. EQUITY JURISDICTION: Cloud upon Title: Not Void on Face: Extrinsic Evidence: Service of Process. The owner of a legal title who is in possession, or the owner of an equitable title whether in possession or not, may, in either case, sue in equity to remove a cloud on his title to real estate whenever the deed, instrument or record creating the cloud is not void on its face, but resort must be had to extrinsic oral testimony to show that fact. In this case the validity of .the order of sale of the property forming the subject of the suit is not impeached by anything appearing upon the records or in the files of the probate court. Therefore, if it is void, that fact must be shown by extrinsic oral testimony, proving the charge in plaintiffs’ petition, that the order of sale was made without personal service of notice on the heirs of the deceased owner of the land, and hence without statutory authority. Plaintiffs’ petition, therefore, states a cause of action in equity.
    2. EVIDENCE: Its Improper Admission by Chancellor: Not Reversible Error. The admission of incompetent evidence by the chancellor in the trial of an equity suit constitutes no ground for reversing the judgment, for the reason that suits in equity are triable anew on appeal. The appellate court can exclude from its consideration any inadmissible evidence contained in the record, and base its decree upon the preponderance of the competent evidence.
    3. -: Its Improper Exclusion by Chancellor: Reversible Error: Service of Notice: Proof. The exclusion of competent •evidence by the chancellor in the trial of an equity suit is a grave error. The vital point in this suit was the question of fact as to personal service upon the plaintiffs of notice of the administratrix’s petition to sell their ancestor’s land for the payment of estate debts. Three of the plaintiffs testified in a general negative way that they had not been personally served with such notice. The defendant then proffered the testimony of the sheriff, whose duty it was to serve such notice, to prove, first, that diligent and unavailing search had been made for the papers showing a return of service of such notice, and, second, the contents of the process served by. him. The chancellor excluded the testimony of the sheriff, and it is held that such exclusion is reversible error.
    4. -: Secondary: Proof of Contents of Lost Records. It is always competent, after proof of the loss or destruction of judicial records, including writs and process, or after diligent and complete search has been made in the proper places without success, to prove their contents by any secondary evidence, where the case does not from its nature disclose the •existence of other and better evidence.
    Appeal from Cape Girardeau. Court of Common Pleas. —Hon. Benjamin F. Davis, Judge.
    Reversed and remanded.

      I. J. Brown and Ward <& Collins for appellant.
    (1) The petition does not state facts sufficient to constitute a cause of action in equity and to support the judgment herein. Said petition shows on its face that equity will not lie.. Janney v. Spedden, 38 Mo. 402; Holland v. Johnson, 80 Mo. 34; Russell v. Lumber Co., 112 Mo. 40; Clark v. Life Ins. Co., 52 Mo. 272; Mason v. Black, 87 Mo. 329; Odie v. Odie, 73 Mo. 289, 1. c. 295 ; Benton County v. Morgan, 163 Mo. 661; Stockton, Ex’r, v. Ranson, 60 Mo. 539; Verdin' v. City, 131 Mo. 112. Here plaintiffs pleaded specifically and definitely that the defect of defendant’s title appears on' the face of the probate record. They do not plead any facts that would require oral testimony or extrinsic evidence, but stand on the broad ground that the sale was void. If the order or judgment is void and the records show it, they plead themselves out of a court of equity. (2) The defendant, as is pleaded in the petition, was in possession of the land, for the petition definitely and specifically pleads “that defendant has received the rents and profits from said real estate since the 13th day of August, 1901;” that being true, plaintiffs cannot maintain an action to remove a cloud upon the title unless plaintiffs are in possession. ‘ ‘ The party claiming title to land and being out of possession cannot invoke equitable jurisdiction to remove cloud upon title.” Davis v. Sloan, 95 Mo. 1. c. 553; Turner v. Hunter, 225 Mo. 1. c. 83; Keane v. Kyne, 66 Mo. 216; Clark v. Ins. Co., 52 Mo. 272; Janney v. Spedden, 38 Mo. 395; Beedle v. Mead, 81 Mo. 1. c. 303; Jewett v. Boardman, 181 Mo. 1. c. 658; Graves v. Ewart, 99 Mo. 13'; Davis v. Sloan, 95 Mo. 552; McRee v. Gardner, 131 Mo. 599. (2) The court erred in its rulings in admitting and rejecting testimony. When defendant undertook to rebut and overthrow the proof made by plaintiff, being the same sort of proof, parol testimony, the court refused to hear it. Defendant offered to show by the sheriff that he actually served notices as required by law upon these very plaintiffs and made return thereof to the probate court, but the court refused to hear this testimony. Plaintiffs had pleaded in their petition that there was no such notice served; they had taken the stand, both sides had conceded that these notices served upon these parties, and the sheriff’s return thereon, were not in the archives of the probate court, and an attorney for plaintiffs had testified that he made a thorough examination, he and the judge and the'clerk of the probate court, and no order of publication or notice of sale or notice to the heirs could be found; so it was competent for defendant to rebut the proof made by plaintiff and show that these plaintiffs had been in truth and fact duly served with notice as required by law that application would be made to sell this real estate. Desloye v. Tucker, 196 Mo. 603; Bray v. Adams, 114 Mo. 492.

      John T. McKay for respondents.
    The petition states a good cause of action. Jewett v. Boardman, 181 Mo. 656; Harrington v. Utterback, 57 Mo. 519; Gardener v. Turner, 99 Mo. 523; Brooks v. Owen, 112 Mo. 251; Price v. Springfield Real Estate Co., 101 Mo. 119'; Desloge v. Tucker, 114 Mo. 603. The last two cases cited are cited for. the purpose of showing the court that the probate judgment is presumptively valid and to further show the court that it is necessary to introduce evidence in order to effect the court’s jurisdiction in failing to make the order notifying the heirs and devisees who reside in the county, of the intention to sell the real estate.
   BOND, C.

This is a suit in equity by the heirs of W. T. Thompson to cancel a deed made by the administratrix of their father’s estate in pursuance of an order of sale of certain lands to pay debts.

The petition prays that plaintiffs be declared to be the owners in fee simple of the land described in said deed and that an accounting be taken between them and the defendant, who was the purchaser of said land at the sale by the administratrix.

The equities stated as the ground for relief are that the sale in question was ordered upon a publicátion imperfect in its terms and without any personal service of notice upon the plaintiff heirs, who resided at the time in the county where the administration was pending.

The defendant answered, admitting the death of W. T. Thompson in 1896 ; the qualification of his wife as his administratrix; that he was the owner of the land in controversy, and that the same was sold by order of the probate court, which was duly approved, and a valid deed was made and delivered to him by the administratrix; that he bought the same under the proceedings of the probate court, which are in all respects valid and regular; that he paid a full and fair price for the land, made lasting improvements and paid taxes thereon; and that plaintiffs are estopped by their laches to complain of said sale.

The parties stipulated as to the correct description of the land, which comprised about fifty acres; and that the plaintiffs were the three children and the representatives of the fourth child of W. T. Thompson, deceased, and were all of his heirs.

It appears from the records and files of the probate court of Pemiscot county, that at its February term, 1901, the administratrix exhibited as a part of her petition to sell the land for the payment of debts, a settlement of her previous accounts as administratrix to that term of the probate court; that this settlement was signed, and sworn to, and approved by the court. The court then made an order of publication, which was thereafter published for four weeks, and continued the settlement of the administratrix, which had been docketed to its February term, until the May term, 1901. At the latter term the court made an order for the sale of the land, after" appraisement, at private sale. The land was appraised at $900; it was sold for $825 cash; and the administratrix made full report of her acts and doings touching these matters to the August term, 1901, of the probate court. "Whereupon, her report was in all things confirmed, and a deed ordered to be made by her to the purchaser. This was done and shows on its face all the recitals required by law in such cases. In the subsequent final settlement of administratrix, the proceeds of this sale were credited to the estate.

Minnie Macklin, one of the plaintiffs and daughter of W. T. Thompson, testified, that she had been married for four years in 1907,- the date of the trial; that she lived in Pemiscot county in 1901; that no paper pertaining to said real estate was served on her in that year. On cross-examination she stated: “Q. What is your husband’s name? A. Wilber Macklin. . . . Q. Do you know how a sheriff serves a paper on a person? A. No, sir, I never saw a sheriff serve a paper. Q. Did anybody ever give you a paper of any sort or of any kind about that land? A. No, sir. Q. What was it about? A. If there was ever any given, I don’t know of it. Q. You don’t remember of it? A. No, sir.”

Bertie Patrick, also one of the heirs of W. T. Thompson, testified that she was eighteen years of age in 1907 and had been married about .one year; that no papers relating-to an application to sell the land had been served on her in 1901 in Pemiscot county, where she had also lived. On cross-examination she stated: “Were all of you children minors in the year 1901? A. No, sir. Q. Who of you were adults ? A. Horace and Otie. Q. Did you know when this land was to be sold? A. Yes, sir; I knew it was going to be sold. Q. Did you know your mother was going to sell it to Mr. Pinnell? A. I knowed she was going to sell it, bnt not to whom. Q. Did you know what she was going to get for it? A. No, sir; bnt I heard her say she got $825 for it. . Q'. You knew that she got $825 for it? A. I knew that she said she got it. I did not see the money. ’ ’

A. W. Thompson, one of the plaintiffs, testified that he was married at the time the land was sold by his mother, the administratrix; that no personal service of notice was made upon him by the then sheriff, McFarland. On cross-examination he further testified: “Q. Did yon know your mother was going to get an order of sale for this land? A. I knew she was talking of it. D. Did you object to her doing that? A. No, sir.- 'Q. Were yon willing at that (time) that she made that sale order? A. Well, I thought I had nothing to say. Q. Yon were of age were yon not? A. Yes, sir. . . . Q. Yon do know when this land was sold yonr father’s estate was considerably in debt, don’t, yon? A. It was in debt, some, yes, sir. Q. Were yon here at the probate court with yonr mother when it sold? A. I was not here the day it sold, no, sir. Q. Were you here the day she got the order to sell it? A. I don’t remember. Q. Don’t yon recollect yon came with her the day she got the order? A. I came with her bnt I don’t remember anything about the order. Q. Don’t yon know that as a rule yon came with her when she came once a year to make her settlement? A. Some times, yes, sir. Q. Yon remember she tried to sell this land once, and that some mistake was made, and for that reason she didn’t sell it at this particular time, but sold it at a laterctime? Don’t yon remember that? A. Yes, I know she came to sell and didn’t sell. . . . Q. Yon say yon had no objection to yonr mother selling this land?” Objected to by counsel for plaintiff. Objection overruled. “Q. Yon knew all about it? Yes, sir.”

Defendant offered to prove hy McFarland, who was the sheriff of Pemiscot county in 1901, that he served process on the three surviving children of "W. T. Thompson, and also on the deceased one, notifying them of the application for the sale of this land; that he had searched for his papers showing his returns of service and had been unable to find them because they were lost or destroyed; that he had returned them properly served ten days before the May term, 1901, of the probate court of Pemiscot county; that he had been paid for his services by the attorney for the administratrix. The court excluded this testimony. Defendant excepted. The court entered a decree divesting the title devolved upon defendant by the administratrix’s deed, and adjudged the legal title to be in the present plaintiffs, subject to a lien of $441 — a balance found to be due defendant upon the accounting. From this judgment the defendant perfected his appeal to this court.

OPINION.

I. It is urged for appellant that the petition in this case does not state a cause of action. We cannot ■ sanction that view. The owner of a legal title who is in possession, or the owner of an equitable title whether in possession or not, may, in either case, sue in equity to remove a cloud on his title to real estate whenever the deed, instrument or record creating the cloud is not void on its face, but resort must be had to extrinsic oral testimony to show that fact. [4 Pom. Eq. Jur. (3 Ed.), secs. 1396-1399; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. l. c. 297; Mason v. Black, 87 Mo. 345; Harrington v. Utterback, 57 Mo. 519; Clark v. Ins. Co., 52 Mo. 272; Jewett v. Boardman, 181 Mo. 647.] These equitable principles have been supplemented and much expanded by the statutory remedies now set forth in section 2535, Revised Statutes 1909. [Ball v. Woolfolk, 175 Mo. 278; Lane v. Dowd, 172 Mo. 167; Hudson v. Wright, 204 Mo. l. c. 423.]

In the case at bar the deed under which defendant claims title is not only regular and formal on its face but is prima facie evidence of all the recitals therein contained, including, the order 'of sale made by the probate court, in pursuance of which it was executed. [R. S. 1909, sec. 176.] The validity of that order of sale is not impeached by anything appearing upon the records or contained in the files of the probate court. Therefore, if it is void, that fact is not apparent on the face of the record but must be shown by extrinsic oral testimony, proving the charge contained in plaintiffs ’ petition, that the order of sale was made without personal service of notice on the heirs resident in the county and hence without statutory authority. The case, therefore, falls within the general principles governing the power of courts of equity to remove a cloud on a title to real estate. The objection that the petition does not state a cause of action is untenable.

n. The next error assigned is the ruling of the court in excluding certain testimony proffered by defendant. In trials of equity cases the improper exclusion of competent evidence presents a wholly different question from the improper admission of incompetent evidence. An error in the latter respect constitutes no ground for reversing the judgment, for the reason that suits in equity are triable anew on appeal, and the appellate court can exclude from its consideration any inadmissible evidence contained in the record, and base its decree upon the preponderance of the competent evidence contained in the record. [Lacks v. Butler County Bank, 204 Mo. l. c. 479; Morrison v. Turnbaugh, 192 Mo. 427; Baxter v. Donnell, 69 Mo. App. l. c. 590; Hall v. Hall, 77 Mo. App. 606.] On the other hand, the exclusion from the record of competent testimony in a trial court is a grave error. ’When that has been done we are deprived of the aid of that evidence upon a final review of the entire record in this court, and thus are compelled in many instances to remand the case at great expense and delay to the parties in order to obtain on retrial the competent evidence kept out of the record by the erroneous ruling’. For these reasons the trial judges should permit a greater latitude of proof in .equitable than in legal actions, and should not exclude from the record any evidence which from any viewpoint could have any probative force as to the issues joined. The inconvenience and the error of a contrary action on the part of the trial court is glaringly illustrated in the present case, as will appear from a reference to the kind of testimony which was excluded over defendant’s objection, and the particular issue upon which it bore.

The vital point in this suit was a solution of the question of fact as to personal service of notice upon the plaintiffs of the petition of the administratrix to sell their ancestor’s land for the payment of debts of the estate. The heirs all lived in the county where the administration was conducted. They were, therefore, entitled by statute to be.notified of the presentation of the petition for the sale of the land. [R. S. 1909, sec. 152.] Three of the plaintiffs were examined as to whether any personal service of notice was made upon them in 1901 as required by law. They answered, as shown in the foregoing statement, in a general negative way* somewhat modified on cross-examination. To disprove these statements, defendant proffered the testimony of the former sheriff of the county to prove, first, that diligent and unavailing search had been made for the papers showing a return of service of notices by him on all the plaintiffs or their representatives who lived in Pemiscot county, Missouri, in 1901; second, the contents, in substance, of the process served by him. The exclusion of the testimony of this witness was highly prejudicial. It is always competent, after proof of the loss or destruction of judicial records, including writs and process, or after diligent and complete search has been made in the proper places without success to find such documents, to prove their contents by any secondary evidence where the case does not from its nature disclose the existence of other and better evidence. [1 G-reenleaf on Evidence (16 Ed.), secs. 509 and 521.]

Under the facts stated in the petition in this case and shown on the trial, the defendant was entitled to adduce evidence disproving the testimony of the three plaintiffs tending to show that the sale made by the administratrix was without the notice to them required by law. . The ruling of the court in excluding the testimony set out in the statement herein adduced by defendant for that purpose deprived him of that defense ; and by keeping testimony on his behalf on that point out of the record deprived this court of the power to consider its probative force- in determining the whole cause on appeal. This was necessarily reversible error. Defendant’s objection to these rulings of the court was timely, and exceptions duly saved, and his assignment of error on that ground is sustained.

III. This disposition of this appeal renders it unnecessary to express our views on the proposition advanced in oral argument, that the order of sale was obtained by the administratrix at the time fixed by law for her annual settlement of the accounts, and, therefore, might be held valid without any showing either of publication or notice to the resident heirs. [R. S. 1909-, sec. 174.] The reason the statute requires an administrator who at any time other than an annual settlement day presents a petition for the -sale of lands to pay debts, to make publication and give notices thereof, is, that the right to sell may be contested by all the parties interested in the estate. The heirs, devisees ■and legatees of estates are not required by law to be present in court or to take any cognizance of the conduct of tbe administration on days other than the term fixed for the annual settlements of the administration; wherefore, it is only right that they should be notified of such proceedings. [Hutchinson v. Shelley, 133 Mo. 400.] It is not entirely clear from the record in this case whether the order of sale made at the May term, 1901, of the probate court was coincident in point with the annual settlement of the administratrix. The record does afford some evidence to show that the order of sale was based upon a full inspection and consideration and approval of her settlements of her accounts as administratrix made under oath and submitted to the court as a part of the petition asking for the sale of the land, and that the court deemed the order of sale justified by the state of the accounts of the administratrix.

As the case must be reversed for other grounds, it is not necessary to determine in the present state of the record whether the order of sale made herein is validated under the statute authorizing such orders where it appears to the court upon a settlement of the accounts of the executor or administrator that the personal estate is not sufficient to pay the debts.

The judgment herein is reversed and the cause remanded for the reasons contained in paragraph II of this opinion.

Brown, G., concurs.

PER CURIAM.

The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.


author: BROWN, C. PER CURIAM.

text:
    INSURANCE COMPANY OF NORTH AMERICA et al., Appellants, v. P. H. CULLEN et al.
    Division One,
    November 29, 1911.
    1. EQUITY JURISDICTION: Enjoining Action at Law: Fraud. Ten fire insurance companies, with each of which the owner . of certain property had taken out a separate policy, were sued separately at law upon the policies by the several assignees from the owner of the said property, which was alleged to have been damaged or destroyed. The ten companies then united in bringing this suit in equity to enjoin the actions at law, and to have the policies cancelled for frauds alleged to have been commited by the owner after the fire. It is held, upon demurrer, that the jurisdiction of equity cannot in such manner be invoked upon the ground of fraud. The courts of law have already acquired jurisdiction of every question involved in these cases, and there is no longer any excuse for fear that prosecution will be withheld until the defense will be embarrassed from loss of testimony or otherwise.
    2. -: -: Full and Complete Justice: Separate Jury Trials. Each of ten fire insurance companies has a policy with the owner of certain property, and each policy contains a clause limiting the liability proportionately to the “whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such' property.” The ten companies were sued separately at law on these policies, and they then united in this suit in equity to enjoin the actions at law, and to have an apportionment of the loss, and contribution. It is held that they cannot thus invoke the jurisdiction of equity on the ground of doing .full justice between the companies by protecting them against the inequities likely to occur in the verdicts of different juries upon the same facts. The companies have no common interest in these contracts; the contracts were made at different times, without consultation between the companies, and without any intention that any right or liability should exist between the various companies.
    .3. -: -: Multiplicity of Suits. Several fire insurance companies, sued separately at law upon separate policies covering the same property, cannot unite to invoke the aid of equity on the ground of avoiding a multiplicity of suits. There is here no community of interest between the companies in the contracts of insurance, and none of them is. liable to more than one suit. It does not lie with the compañíes to urge that the defendants may he saved a multiplicity of suits. Besides, the prevention of a multiplicity of suits is not an independent source of equity jurisdiction, in a sense that it can create a cause of action where none has ever existed.
    Appeal from Audrain Circuit'Court. — Hon. James D. Barnett, Judge.
    Affirmed.

      George Robertson and Charles B. Obermeyer for appellants.
    (1) The policies a.re interdependent; each company is interested in the fixation of the true amount of loss; each of the actions at law presents the same 'questions, questions of law and fact in which each and all of the parties to the petition are equally interested. If the petition is sustained, a multiplicity of suits is thereby prevented. The true amount of loss can thereby be ascertained, and the liability of each company fixed, and the loss apportioned between the several insurance companies. It therefore presents equitable issues ; the remedy at law is not adequate. Home insurance Co. v. Clemical Co., 109 Fed. 681; Virginia-Carolina Chemical Co. v. Insurance Co., 113 Fed. 1"; Insurance Co. v. Schmidt, 126 Fed. 998'; Tisdale v. Insurance Co., 84 Miss. 709; Crawford v. Railroad, 83 Miss. 708; Fuller v. Insurance Co., 36 Fed. 469; Garrison v. Insurance Co., 60 H. S. 19; Pennyfeather v. Baltimore, 58 Fed. 481. On principle see Pomeroy’s Eq., sec. 368; Michel v. St. Louis, 112 Mo. 614; Osborne v. Railroad, 43' Fed. 824; Sylvester v.. St. Louis, 130 Mo. 323; Biddle v. Ramsey, 52 Mo. 151; Insurance Co. v. Landon, 56 N. J. Eq. 513; Kellogg v. Bank, 42 N. Y. Supp. 379; Garrison v. Insurance Co., 19 How. (U. S.) 312; Waterworks v. Yeomans, L. R. Ch. App. (1866); Railroad v. Implement Co., 57 Fed. 42; Railroad v. Schnyer, 17 N. Y. 592; Bone v. Platt, 72 Hun, 32.6; Chicago v. Collins, 49 L. R. A. 408; Emigrant Co. v. Grninanlt, 37 Fed. 523; 4 Joyce on Insurance, secs. 2519-3472; Pomeroy’s Equity, secs. 243-275. (2) The petition is not multifarious, nor does it attempt to combine eleven distinct causes of action into one. Insurance Co. v. Virginia, etc., supra; Walker v. Powers, 104 IT. S. 345; DeForest v. Thompson, 40 Fed. 375-. (3) This proceeding does not deprive the defendants and appellees of the constitutional right of a trial by jury. The petition presents matters of equitable cognizance. This being true, the appelants have the right to resort to a court of equity. The constitutional amendment does not affect the proceedings in equity. Shields v. Thomas, 18 How. 269; Barton v. Barbour, 104 H. S-. 126; Insurance Co. v. Virginia, etc.,-supra. (4) The gravamen of this petition is, that in the action at law complete justice cannot be done. The necessity of ascertaining what the real loss is and apportioning the loss between the insurance companies gives a court of equity jurisdiction. Simpson v. Treat, 126 Fed. 1002; Insurance Co. v. Virginia, etc., supra. (5) Community. of interest of the defendant insurance companies in every question of law and fact involved in the controversies presented by this action, the inadequacy of the eleven actions at law to attain the ends of justice, a great inconvenience and the expense for all parties in the determination of the controversies in separate suits, are sufficient grounds to sustain the jurisdiction of a court of equity to prevent a multiplicity of suits. Wyman v. Bowman, 127 Fed. 262; Insurance Co. v. Van Clever, 61 N. E. 94; Lung v. Jackson, 85 Fed. 504; 1 Pomeroy’s Eq., see. 269; DeForest v. Thompson, 40 Fed. 375; P'rentice v. Duluth, 58 Fed. 441; Tisdale v. Insurance Co., 84 Miss. 709.

      Avery & Woolfolk and Barclay, Fauntleroy Cullen for respondents.
    (1) The petition is fatally deficient and the demurrer was on that account well taken. There is no contribution among underwriters of fire policies where each contract of insurance contains the American (standard form) stipulation for pro rata liability as to each company, as here appears. Lucas v. Ins. Co., 6 Cow. 638; Turnbull v. Ins. Co., 86 Ky. 230; Deming v. Merchants’ Co., 90 Tenn. 306; Fitzsimmons v. Tus. Co., 18 Wis. 234; Brown v. Ins. Co., 77 Md. 64. The early English rule of contribution is changed by the “American clause” now in use, the history of which is sketched in Alliance Assn. Co. v. Insurance Co., 8 La. 121; Peters v. Insurance Co., 5 Serg. & R. 481. (2) Even if there was a right of contribution among the insurers, it would be res inter alios acta as to the insured, on the facts here disclosed, when as to Him the pro rata liability clause is in force in his policy as to each insurer interested. Each contract is separate and independent. 1 Pomeroy, Eq. Jur., p'. 163, sec. 178; Koob v. Ins. Co., 113 Ky. 360'; Good v. Ins. Co., 43 Ohio St. 394. (3) The loss insured against having occurred, each plaintiff in the suit at bar has a plain, adequate and complete remedy at law if sued on its own policy (even if the policy is avoidable for fraud), and hence there is no lawful ground to apply equity jurisdiction and thereby to deprive the insured of trial by jury on any issues arising under the policy. Ins. Co. v. Hoover Co., 173 Fed. 888; Imperial Ins. Co. v. Gunning, 81 111. 236; Lumber Co. v. Hayward, 20 Fed. 425; Ins. Co. v. Morlman Co., 73 Fed. 68-. (3) Where an action at law is pending, involving the identical subject of litigation sought to be raised by later suit in equity, the court should decline to entertain the latter, since where matters are subject to concurrent jurisdiction that which first attaches should go on to the close. Smith v. Mclver, 9 Wheat. 532. This rule applies to cases of jurisdiction concurrent at law and in courts of equity. 1 Pomeroy, Eq. Jur., sec. 179; Connell v. Tost,. 62 W. Va. 66; Pratt v. Nortliam, 5 Mason, 105. (4) “Multiplicity of suits,” on the facts here exhibited, furnishes no ground for the interposition of equity, the effect of which would be to prevent a trial by jury of the issues arising under each insurance policy, after the risk assumed and insured against has merged into a loss. Ins. Co. v. Hoover Co.', 173 Fed. 888; Ins. Co. v. Amus. Co., 178 Fed. 519; Scruggs v. Ins. Co., 176 Fed. 226; Turner v. Mobile, 135 Ala. 73; Thomas v. Canning Co., 92 Fed. 422. (5) The petition is fatally deficient in that several causes of action have been improperly united therein (as the demurrer assigns), for even if each company had an equity for cancellation of its own policy, it would have no such equity as to the policy of any other insurer. The jointure of such causes would be illegal and irregular, as appears on the face, of the petition for each of such causes would not “affect all the parties to the action.” R. S. 1909, secs. 1795,1800; Dodd v. Hartford, 25 Conn. 238; Insurance Co. v. Turnbull Co., 86 Ky. 230. (6) One of the eleven alleged insurers (the Phoenix Town Mutual) is omitted and is not made a party plaintiff and is not accounted for. It hence could not be included in the “apportionment” of loss, alleged to be so imperative as to form a ground for equitable jurisdiction. This defect of parties is specifically assigned in the demurrer, and is clearly fatal to the suit. R. S. 1909, sec. 18001.
   BROWN, C.

The plaintiffs and appellants are ten fire insurance companies named in the petition as follows: Insurance Company of North America of Philadelphia, Allemannia Insurance Company of Pitts-burg, American Insurance Company of Boston, Firemen’s Insurance Company of Newark, New Jersey, German American Insurance Company of New York, Insurance Company of the State of Illinois, Michigan Fire.and Marine Insurance Company of Detroit, Pennsylvania Fire Insurance Company of Philadelphia, Phoenix Insurance Company of Hartford, Connecticut, Royal Insurance Company of Liverpool, England. The defendants are P. H. Cullen, O. H. Avery, E. B. Wool-folk, T. T. Fauntleroy, Shepherd Barclay and S. J. Rosenthal.

The statements of the petition, so far as they are necessary to the consideration of the questions presented for decision in this case, are substantially as follows: That the ten plaintiffs, together with the Phoenix Town Mutual Fire Insurance Company of St. Louis, Missouri, during the month of April, 1905, issued to one S-. J. Rosenthal their several policies to the aggregate amount of eleven thousand five hundred dollars, insuring him against loss or damage by fire to an amount not exceeding the amounts named in their several policies, upon his stock of furnishing-goods, notions, clothing, shoes, hats, caps and other merchandise, while located and contained in the brick building situated at 213? Franklin avenue in the city of St. Louis, and that on the 9th day of May, 1905', a fire occurred in said premises whereby a portion of the property was partially destroyed. On or about the 19th day of the same month Rosenthal met the representatives of each of the insurance companies at the scene of the fire, and demanded payment from each of them to the full amount of its policy. Thereupon the companies demanded of Rosenthal that he make proofs of his loss according to the terms of the policies. He promised to furnish such proofs, but after-wards neglected and refused-to do so; and about the 22d day of June, 1906', assigned the said policies by indorsement in writing as follows: The policies of the Insurance Company of the State of Illinois, the Phoenix Town Mutual, and the Royal Insurance Company of Liverpool, England, to the defendant O'. H. Avery, the policies of the Allemannia Insurance Company, the Michigan Fire and Marine Insurance Company and Phoenix Insurance Company, to the defendant E. B. Woolfolk; and on August 1, 1905, assigned by similar indorsement the policies of the American Insurance Company, the Firemen’s Insurance Company, the German American Insurance Company, the Insurance Company of North America and the Pennsylvania Fire Insurance Company to the defendant- P. H. Cullen. On the 9th day of August, 1905', Cullen brought his five separate actions at law in the circuit court of Audrain county against” the several insurers in the policies assigned to him; on the 10th day of the same month Woolfolk brought his three separate actions at law in the circuit court of Lincoln county on the policies so assigned him; and on the same day Avery brought his three separate actions at law in the circuit court of Lincoln county on the policies so assigned to him. All of said suits are still pending and the defendants have filed substantially identical answers in each. Each of the said policies of insurance contains, among other, the following conditions:

“Reduced Rate Agreement, Eighty per cent. In consideration of the reduced rate of premium charged for this policy, it is hereby mutually understood and agreed that this company shall, in case of loss or damage, be liable for such portion only of the loss or damage as the amount insured by this policy shall bear to eighty (80) per cent of the actual cash value of the property covered by this policy at the time of fire, Provided, however, that if the whole insurance shall be greater than eighty (80) per cent of the value of the property covered, this company shall not be liable for a greater portion of the loss or damage than the amount insured by this policy bears to the whole insurance covering the property at the time of fire.
“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, afid the loss or damage shall be ascertained or estimated áecording to such actual cash value, with proper deductions for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having, been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning’ this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in the case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.
“If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put in the best possible order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon; and. within sixty days after the fire, unless such time is extended, in writing, by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of.loss thereon; all encumbrances thereon; all insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire.
“The insured, as often as requested, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath, by any person named by this company, and subscribe the same; and, as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company or its representatives, and shall permit extracts and copies thereof to be made. In the event of disagreement as to the amount of the loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expense of the appraisal and umpire.
‘ ‘ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto.
“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court at law or equity until after - full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. Wherever, in this policy, the word ‘insured’ occurs, it shall be held to include the legal representatives of the insured, and wherever the word ‘loss’ occurs, it shall be deemed the equivalent of ‘loss or damage.’ ”

The petition further states in substance that if the plaintiffs and the Town Mutual Insurance Company are liable upon said policies to the assignees, which they deny, they are each liable for a portion only of said loss to be ascertained according to the terms and conditions of said policies above quoted, and that in order to do justice “between'said companies,” and carry out the provisions of the contract, it is necessary that the amount of the loss, the amount of insurance maintained, the per cent that such insurance bears to the value of the property insured, the amount, if any, that the assured is liable to contribute as a co-insurer by the terms of said conditions, should all be ascertained and fixed, and the loss apportioned between each of the insurers and the insured in accordance with the terms of the policies; “that by virtue of the policies, each insurer is interested in the liability of the other and the liability of the assured as a codnsurer; that if these several matters are to be ascertained in eleven different suits at law by different juries through different trials, in one case one set of values might be fixed, in another, another set of values might be fixed, and in this way one insurance company might be called upon to pay its proportion in one case upon a different ratio than might be fixed in each of the other cases of the other insurers; so that, instead of the insurers, if liable at all, paying in accordance with their covenants, they would pay in accordance with the discordant findings of juries in separate trials, and perhaps in separate tribunals and jurisdictions.

“That this presents a case for the ascertainment of whether any liability at all exists, and, if there shall be any, then for making apportionment of the contribution which each insurer, including the assured as a co-insurer, should bear of the common loss; that this can only be done in a court of equity, where matters of apportionment and contribution are cognizable; and that the several common law actions against .the several insurance companies should be enjoined, and the whole matter settled in one suit on the equity side of the court.”

The petition then alleges fraud and false swearing committed by Rosenthal since the fire, with reference to the amount of the loss, the disposition of the property remaining and the amount of the salvage, and the suppression and destruction of inventories, schedules and other information thereof, all of which, it is alleged, constitute fraud within the terms of the policies so that each and all become null and void by reason thereof.

That the petitioners are informed and believe that the defendants Fauntleroy and Barclay have already claimed some interest under the assignment of the policies. The prayer for relief is for injunction to prevent the prosecution of the suits pending in Audrain and Lincoln counties; that if any of the petitioners shall be held liable in any amount on the policies that the liability be decreed to be one calling for contribution and apportionment on the part of each petitioner, together with the Phoenix Town Mutual Insurance Company, in the proportion provided in the policies, including the liability of Rosenthal as a co-insurer; that an accounting be had as to the loss, and the amount for which each petitioner may be liable to plaintiffs in the actions at law, together with the salvage, the amount of insurance, including liability of Rosenthal as a co-insurer; that the policies be set aside and decreed null and void; that the plaintiffs in said actions at law shall not be entitled to recover anything for the reasons set forth in the petition and especially for the failure of Rosenthal to furnish proofs of loss as required by the terms of the policies, and for general relief.

To the petition the defendants filed their general and special demurrer on the grounds:—

“(1) That the petition does not state facts sufficient to constitute a cause of action.
“(2). That several causes of action have been improperly united.
“ (3) That the court has no jurisdiction over the person of any of said defendants.
“(4) That said court has no jurisdiction over the subject of this action.
(5) That there is a defect of parties plaintiff, inasmuch as the Phoenix Town Mutual (Insurance Company) of St. Louis, is not a party plaintiff, or defendant.’’

This demurrer was sustained by the court, and the plaintiffs declining to plead further, it gave final judgment for the defendants. Thereupon the plaintiffs in.due time filed their motion in arrest of judgment, which was overruled by the court, and the cause was regularly appealed to this court.

Exceptions were saved by plaintiffs to the orders of the court sustaining the demurrer and overruling the motion in arrest of judgment, by bill of exceptions filed in due time. The question presented in this court is whether or not the trial court erred in sustaining the defendants’ demurrer.

Each of the ten plaintiff insurance companies and the Town Mutual has a separate policy of insurance upon the same property issued to Rosenthal, the owner. Each policy contains a provision that the insurer shall not be liable under it for a greater proportion of any loss than the amount insured by it bears to the whole amount of insurance on the property, whether valid or not. The property having been injured or destroyed by fire, the assignees of all these policies severally brought separate actions of law on each of the policies, in the circuit courts of Lincoln and Audrain counties. The ten plaintiffs (The Town Mutual Company and its policy being omitted) thereupon brought this suit to enjoin the actions at law, to have the policies cancelled on account of frauds alleged to have been committed by Rosenthal after the fire, and which by the terms of each policy rendered it null and void, to ascertain whether any liability exists with respect to said policies, and if there should be. any, to mate a common apportionment and to determine the contribution which each insurer should mate toward the common loss; and to decree that the plaintiffs should not be entitled to recover anything for the reasons set forth and particularly for the reason that Rosenthal did not furnish the insurers with proofs of loss. A demurrer having been sustained to the petition the question is directly presented whether there is anything in the facts of this case to require or authorize the circuit court, in the exercise of its equitable jurisdiction, to forbid the trial of these actions at law by a jury, according to the course of the common law, and to compel the defendants to submit themselves to a trial by the judges, according to the practice of courts of equity. The case is an important one, because, if we may be permitted to adopt the language of the United States Circuit Court of Appeals of this circuit in a similar case (Mechanics’ Ins. Co. v. Hoover, 173 Fed. 888, l. c. 890), “If the bill in this case states a canse of action cognizable in equity, it is plain that the days of jury trial in insurance litigation are numbered, as there are extremely few insurance losses not covered by at least two or more policies in different insurance companies. In view of the great number of actions to recover losses upon policies of insurance heretofore triable at law, any decision which would strike down this jurisdiction and transfer the whole litigation to courts of equity ought to be founded upon the soundest reason and declared only after careful consideration.” It is sought by the appellants to found the equity jurisdiction which they invoke in their petition upon two grounds. 1. That the case involves the issue of fraud, of Which courts of equity have jurisdiction concurrently with the courts of law. 2: That in the exercise of equity jurisdiction in the form in which it is here invoked, a multiplicity of suits will be avoided, and full justice will be done between the several plaintiffs by protecting against such inequalities as may be expected to occur in the verdicts of different juries upon the same facts.

. Í. It is not claimed that the fraud charged in the petition would not constitute a full and complete legal defense to the actions upon the several policies; in fact, the petition states that it has rendered tho policies null and void. • One of the grounds upon which equitable interposition is asked is that suits have already been brought in the courts of this State on them all. These courts have already acquired jurisdiction of every question involved in these cases, and it is sought, by this proceeding, to enjoin them from exercising it. There is no longer any excuse for fear on the part of these plaintiffs or any of them, that prosecution will be withheld until the defense will be em"barrassed from loss of testimony or otherwise; hut a clear case is presented in which the defendants in the suits at law are attempting to transfer to an equitable forum the trial of issues of which jurisdiction has already been acquired at law.

Home Insurance Company v. Stanchfield, 1 Dill. 424, 12 Fed. Cas. 449, was a case of this character in which the complainant sought by bill in equity to secure the cancellation of a fire policy after an action had accrued under it, on the ground that it had been obtained by fraud. In sustaining a general demurrer to the bill Judge Dillon stated, among others, the following reasons for the action of the court:

“(1) The company has a full, plain, and perfect defense to the policy at law, and no reason is shown why a resort to equity is either necessary, expedient, or proper. (2) Action at law on the policy must (as we have seen) be brought in a short, limited time after the loss. In' the present case only about seven months remain to the assured, and the bill alleges that he was about to bring suit; the purpose of the present bill is, therefore, manifest, viz,: to force the assured to litigate in equity instead of at law, thereby depriving the party of the right to a trial by jury.” Mr. Justice Miller, concurring, observed: “I am entirely satisfied with the opinion prepared by the circuit judge, both with the result and the course of argument by which that result is attained. I think the turning points of the case are, that the loss had occurred before the bill was filed, and that by reason of the limitation in the policy as to the time of bringing suit, and the allegation that the defendants were threatening to sue at law, there is no danger of indefinite delay, nor is there any other circumstances alleged warranting resort to equity. ’ ’

There is no reason why the same rule should not be applied to policies of fire insurance as to life insurance, and this point has become too well settled to admit of controversy in cases involving the class of contracts last mentioned. [Cable v. U. S. Ins. Co., 191 U. S. 288; Phoenix Life Ins. Co. v. Bailey, 13 Wall. 616; Schuermann v. Union Central Life Ins. Co., 165 Mo. 641.] In the last case cited this court said: “The defense of fraud, as set up in this ease, against a legal demand, before as after the enactment of section 7890-[R. S. 1899], presented an issue that was properly triable by jury, and the trial court did appellant no wrong. in so ruling.”

II. Assuming, then, that the fraud and false state.ments charged in the petition constitute no ground for equitable interference with the actions at law now pending upon the policies, it becomes necessary to consider whether the jurisdiction may be invoked in this case for the purpose of preventing a multiplicity of suits, or of adjusting differences between the plaintiffs themselves. We will, for the purposes of this decision, ignore the fact that -under the allegations of the petition, if such differences exist, the Phoenix Town Mutual Company is equally interested with the plaintiffs, and such an adjustment in this ease would be impossible without its presence either as a plaintiff or defendant, its absence being unexplained. For anything that appears, the situation, after such an adjustment as is asked by the plaintiffs, would be the same in kind if not in degree as that which exists now. After the liability of the ten plaintiffs had been ascertained by the court, the Town Mutual would still be at the mercy of a jury and might secure a verdict so small that plaintiffs would be humiliated by its success or might suffer a verdict so large that it would wish that it had cast its lot with its associates.

It is plain that the plaintiffs have no common interest in these contracts. They were made at different times, without consultation between the companies, and without the intention that any right or liability should exist between themselves. It is true that in each policy the liability is limited by the amount of insurance upon the the property, but even this provision refers to no other insurer, but simply to the amount of such insurance as an element in determining the amount of liability upon the particular policy. It is not claimed that should one of these plaintiffs pay the full amount of his policy and another but ten per cent of his, that there would be any' contribution oi** adjustment called for between the two. In fact, upon the face of the policy this feature is emphasized by the provision that in determining the amount for which the insurer shall be liable the nominal and not the effective amount of the insurance shall be taken into consideration. It counts the same whether valid or invalid and whether the insurers are solvent or insolvent. It is only operative between the parties to the policy and creates no different relation than would exist were it provided, without mentioning other insurance, that the insurer should pay one-eighth or one-tenth or any other fractional part of the entire loss. It is used here, not for the purpose of settlement of any controversy, or difference, or relation between the plaintiffs. It can serve but two purposes as to them: (1) to enable them, by clubbing together in one suit, to reduce the cost to each of resisting payment of the loss; (2) to avoid a trial by jury. In the first of these the defendant can have no direct interest. It is a matter purely between the parties to the combination and the governmental agency upon which they have called for assistance; in the second, the real question is whether there is anything in this case that places the defendants outside the pale of the constitutional guaranty of the right of trial by jury.

The claim that the plaintiffs are entitled to a trial in equity to prevent a multiplicity of suits is also without merit. There is no ground stated for fear that any one of them will be sued more than once, and it is this one suit against each of them on its contract of insurance that they have sought to combine to avoid. As we have seen, under these contracts it is not the concern of any one of them how many times the others are sued, and the defendants have not called upon them for assistance to prevent a multiplicity of suits by them. We cannot more clearly express our opinion upon this question than by using the language of the ¿United States Circuit Court of Appeals of this circuit in Mechanics’ Ins. Co. v. Hoover, supra, wherein it said:

“But it is also urged that complainants have a right to file this bill in equity in order to save a multiplicity of suits. The phrase ‘multiplicity of suits,’ in connection with the jurisdiction of courts of equity, has often been carelessly used, but, it seems, never more so than in this proceeding. Each of these complainants were sued by the Distilling Company at law. In order to save the Distilling Company from prosecuting nineteen different suits at law, complainants urge that they may bring .this action in equity. There are two reasons why the rule in regard to saving a multiplicity of suits as applied to matters of equity jurisdiction may not be invoked in this proceeding.
“First. There can be no claim that any complainant is saved from a multiplicity of suits by the maintenance of this action in equity. The Distilling Company is not in court asking it to take jurisdiction of its suits against the insurance companies in order to save it, the Distilling Company, from a multiplicity of suits against it or by it. It does not rest with the complainants to urge as a foundation for their suit that the defendant, the Distilling Company, may thereby be saved a multiplicity of suits. [Equitable Life Assurance Society v. Brown, 213 U. S. 25.]
“Second. The complainants, in our opinion, present no cause of action, either legal or equitable, against the Distilling Company by the allegations of their bill. The prevention of a multiplicity of suits is not, considered by itself alone, an independent source of jurisdiction in equity, in such a sense that it can create a cause of action where none had ever existed. ’ ’

Upon another point which has been suggested by the plaintiffs in this suit the same court in the same opinion says: “If the peculiar and special duty of juries to pass upon property values in matters at law may be taken away and given to a chancellor, merely because different juries may render different verdicts upon like or similar facts, then trial by jury in civil actions no longer exists.”

That case has been cited and approved, with an interesting citation of authorities, in Scruggs v. American Cent. Ins. Co., 176 Fed. 224, and is also followed in Smith v. Ins. Co., 178 Fed. 510. The law as now administered in the federal courts seems to be settled by these cases. We have carefully read the authorities cited by appellants and have'seen nothing to shake us in the views we have expressed.

For the reasons stated the judgment of the circuit court is affirmed.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: BLAIR, C. PER CURIAM.

text:
    W. W. NORMAN v. PENNSYLVANIA FIRE INSURANCE COMPANY, Appellant.
    Division One,
    November 29, 1911.
    1. PROCEEDINGS PENDING IN ANOTHER STATE: Proof: Stay of Execution. In order that appellant in this suit upon an insurance policy may avail itself of any defense or partial defense or secure a stay of execution on the ground of pendency of garnishment proceedings in Pennsylvania, it is incumbent upon it to prove in the trial court the fact of the pendency of such proceedings.
    2. -: Attachment and Garnishment: Statutory Actions. Attachment and garnishment in attachment are statutory actions unknown to the common law.
    3. EVIDENCE: Judicial Notice: Statutes of Another State: Full Faith and Credit. The courts of this State cannot judicially notice the statutes of a sister state even for the purposes of the full faith and credit clause of the Federal Constitution.
    4. -: Laws of Sister State: Proof. The opinion of a court of a sister state, to be accepted in this State as proof of the law of the sister state, must purport on its face to be the decision of a court of last resort in that state. In the absence of proof, the only assumption possible as to the statutes of a sister state is that they are like our own.
    5. ATTACHMENT: Affidavit. Our statute requires the bond, petition and affidavit for attachment to be filed before the issuance of the writ. Defective affidavits may be ’’amended, but the issuance of a writ of attachment without the filing of any affidavit for attachment is wholly unauthorized.
    6. -: Service of Process: Acts of Garnishee. In this case there appears no service of process upon the respondent (defendant in the attachment proceedings), and nothing that appellant, the garnishee, might do could validate the proceedings as against respondent.
    7. -: Statutory Action: Jurisdiction: Presumptions. No matter whether a court is or-is not a court of general jurisdiction, its jurisdiction in attachment and garnishment proceedings, they being special and statutory, is not supported by the' presumptions which usually attend the acts of courts of general jurisdiction.
    Appeal from Stoddard Circuit Court. — Row. J. L. Fort, Judge.

      Affirmed.

      Bates, Harding, Edgerton & Bates and Charles Liles for appellant.
    (1) The exemplified copy of the record of the proceedings in the case of Sheip & Vandergrift v. Norman, pending in the court of common pleas No. 5 for the county of Philadelphia, State of Pennsylvania, which shows that said court was a court of record, having a judge, a clerk, a sheriff and a seal, is conclusive proof that such court is a court of general jurisdiction, and that it had jurisdiction of the subject-matter of the action and of the parties thereto, in the absence of proof to the contrary. Yan Fleet on Collateral Attack, secs. 845 and 847; Am. Mut. L. Ins. Co. v. Mason, 159 Ind. 15; Bailey v. Martin, 119 Ind.-103; Old Ft. Wayne Mut. L. Ins. Assn. v. McDonough, 164 Ind. 321; Pringle v. Woolworth, 90 N. Y. 502; Stewart v. Stewart, 27 W. Va. 167; Woodworth v. McKee, 126 Iowa, 714; Williams v. Williams, 53 Mo. App. 617; Wilson v. Jackson, 10 Mo. 329'; Seymour v. Newman, 77 Mo. App. 578; Datz v. Chambers, 3' Pa. Dist. Repts. 353; National F. Ins. Co. v. Chambers,-53 N. J. Eq. 468. If it be claimed that the court was without jurisdiction, the burden was upon respondent so to show. In his replication he advanced such claim, but did not offer a single word of evidence in support thereof. The situation is precisely' that commented upon in Rogers v. Alabama, 192 IT. S. 226, and again in German Savings & Loan Society v. Dormitzer, 192 IT. S. 12,5, in both of which cases it was said that such a suggestion, without evidence to support it, was such an attempt to evade the full faith and credit clause of the constitution as could not be upheld by the court. (2) Appellant did, in fact, prove the law of Pennsylvania by introducing in evidence the opinion of the court in Datz v. Chambers, 3 Pa Dist Rep. 353. The case is identically the same as to material facts as Sheip & Vandergrift v. Norman, and holds (citing statutes and decisions) that in Pennsylvania a debt due from a non-resident may be reached by garnishing funds in the hands of a nonresident insurance company authorized to do business in that state which are due to the nonresident debtor, in the precise manner done in the Sheip & Vandergrift case. The jurisdiction of a court of record may be proven by the law of the state. The law of a state is established either by the decision of its courts or by its statutes. The opinion in the case of Datz v. Chambers clearly proved the law of Pennsylvania and the jurisdiction of the court of common pleas for the county of Philadelphia, and in that case the District Court of Philadelphia, which is the same as the Court of Appeals of Missouri, clearly defined and fixed and established the jurisdiction of the court of common pleas of Philadelphia county to hear and determine garnishment suits. This opinion was not only competent evidence, hut it is conclusive evidence to establish the jurisdiction of that court in this garnishment suit over the parties and the subject-matter. (3) In a case where the statute law of a sister state is not proved and the subject-matter is not covered by the common law, the courts of Missouri will assume that the statute law of such sister state is the same as the statute laws of Missouri. Wyeth. Hdw. & Mfg. Co..v. Lang, 54 Mo. App. 147, 127' Mo. 242 ■ Bain v. Arnold, 33 Mo. App. 631; "White v. Charry, 20 Mo. App. 3’S9; Hoffmeyer v. Losen, 24 Mo. App. 652; Flato v. Mulhall, 72 Mo. 522; Sloan v. Terry, 78 Mo. 623; Fielden v. Jessup, 24 Mo. App. 91. To the same effect are the cases cited by the court in Hurley v. Railroad, 57 Mo. App. 675; Barhydt v. Alexander, 59 Mo. App. 188; Brinkman v. Luhrs, 60 Mo. App. 512. (4) In a suit in a state court, where the question in issue requires tlie application of the full faith and credit clause of the Federal Constitution, the state, court will take judicial notice of the local laws of the State from which the record comes. State of Ohio v. Hinchman, 27 Pa. St. 479; Trowbridge v. Spinning, 23 Wash. 48; Payne v. Schenectady Ins. Co., 11 R. I. 411; Rae v. Hulbnrt, 17 111. 577; Kopperl v. Nagy, 37 111. App. 24; Miner v. Rogers Coal Co., 25 Mo. App. 78. (5) This case should be reversed and remanded to the Stoddard circuit court, with directions to stay the execution until the defendant is enabled by further exemplifications from the record of the court of common pleas of Philadelphia county, Pennsylvania, in which the Sheip & Vandergrift case is pending, to show the proceedings and judgment in that case since the date of the judgment herein.

      N. A. Mosley, J.ames & Green and Ernest A. Green for respondent.
    Thé declaration of law given by the court at the request of plaintiff was a correct one. There was no evidence whatever introduced in the case showing that the Court of Common. Pleas No. 5 of Philadelphia county, Pennsylvania, had jurisdiction of either the subject-matter of the action or of the persons of either plaintiff or defendant herein in the cause of Sheip & Vandergrift v. W. W. Norman, alleg'ed to be pending therein. Wyeth Hardware Co. v. Lang, 54 Mo. App. 147; Barnard Mfg. Co. v. Milling Co., 79 Mo. App. 153; Huffman v. Sisk, 62 Mo. App. 398-; Gates v. Tusten, 89 Mo. 13; Wyeth Hardware Co. v. Lang, 127 Mo. 242; Howland v. Railroad Co., 134 Mo. 474; Masterson v. Railroad Co., 20 Mo. App. 653; Said v. Stromberg, 55 Mo. App. 438; Coleman v. American Fire Insurance Co., 74 Mo. App. 663; Meyer v. McCabe, 73 Mo. 236; Conrad v. Fisher, 37 Mo. App. 352; Nenno v. Railroad, 105 Mo. App. 540; Southern Illinois & Missouri Bridge Oo. v. Stone, 174 Mo. 1; Morton v. Supreme Council, 100 Mo. App. 76; Smith v. Aultman, 1201 Mo. App. 462.
   BLAIR, C.

The facts, in so far as they are pertinent to a consideration of the error assigned, are brief.

This is a suit on an insurance policy issued by appellant to respondent covering certain machinery in use in Stoddard county, and “payable to Sheip & Yandergrift as interest may appear.” After loss the amount due on the policy was adjusted, and later this suit was brought.

The answer alleged, among other things, that Sheip & Yandergrift garnished appellant by attachment in the court of common pleas of Philadelphia, that said court had jurisdiction of the garnishment-proceedings and such proceedings were still pending, Sheip & Yandergrift claiming the full amount due under the policy; that the policy was payable to Sheip & Yandergrift as their interest might appear, and respondent was not entitled to recover on the policy until the right of Sheip & Yandergrift to the proceeds of the policy had been determined; denies collusion and offers to pay the money into court to await the result of the controversy between respondent and Sheip & Vandergrift.

The reply denies the jurisdiction of the Pennsylvania court in the garnishment proceeding’s; denies that respondent is indebted to Sheip & Yandergrift and alleges collusion between these and appellant.

On the trial respondent introduced the policy, proof of loss, and the statement of the adjuster. Appellant offered a transcript of the records and proceedings of the court of common pleas, No. 5, for the county of Philadelphia, Pennsylvania, which showed that a writ of attachment issued out of that court on February 18-, 1907’, against respondent, and that the sheriff made return, among other things, that he “attached as within commanded 2-18-1907 at 1:48' o ’clock p. m. ”

There was no service upon respondent. The only affidavit shown by^the transcript was one sworn to February 19', 1907, and attached to the “plaintiff’s statement of claim and cause of action,” merely verifying the truth of the allegations thereof, among which allegations is one that respondent was a resident of Missouri. When this was filed does not appear further than that it follows entries dated February 20, 1907, and precedes others dated February 25, 1907.

One Wintersteen entered his appearance for appellant February 20, 1907.

No judgment or other proceedings of the court, as such, were certified.

Appellant then offered in evidence an opinion of the district court of Pennsylvania to show the jurisdiction of the court of common pleas.

There was evidence for respondent tending to show that he owed Sheip & Vandergrift nothing and that they were heavily indebted to him, and evidence generally in support of the allegations of his pleadings. No objection for defect of parties was taken.

The court gave judgment on the policy for the amount at which the loss had been fixed by the adjustment and denied a motion to stay the execution until the determination of the garnishment proceedings in Pennsylvania. The motion mentioned does not appear in the record.

Appellant contends that the trial court erred in refusing to stay the execution on the judgment rendered until final disposition had been made of the garnishment proceedings in Pennsylvania, which, it is insisted, are shown by the record to have been pending in the court of common pleas in that State.

In order that appellant might avail itself of any defense or partial defense or secure, a stay of execution in this action on the ground of the pendency of garnishment proceedings in Pennsylvania (Railroad v. Sturm, 174 U. S. 710; Wyeth Hardware & Mfg. Co. v. Lang & Co., 127 Mo. 242; Howland v. Railroad, 134 Mo. 474), it is obvious, that it was incumbent upon it to prove in the trial court the fact of the pendency of such proceedings.

This requirement appellant attempted to satisfy by offering in evidence the record of the Pennsylvania Common Pleas Court and a decision of the district court of that State. We do not think the proof sufficient.

Proceedings by attachment and garnishment in attachment were unknown to the common íaw and ‘ ‘ to what actions the remedy of attachment may be given is for the Legislature of each State to determine.” [Rothschild v. Knight, 184 U. S. l. c. 341.]

The statutes of Pennsylvania were neither pleaded nor proved in this case and the courts of this State cannot judicially notice the statutes of a sister State (Coleman v. Lucksinger, 224 Mo. l. c. 14; Gibson v. Railroad, 225 Mo, l. c. 483) even for the purposes of the full faith and credit clause of the Federal Constitution. [Railroad v. Wiggins Ferry Co., 119 U. S. l. c. 622; Ib. 73 Mo. 389; Hanley v. Donoghue, 116 U. S. l. c. 4; Lloyd v. Matthews, 155 U. S. l. c. 227.] The cases to the contrary to which we are cited are disposed of in these last mentioned decisions. Nor was the omission to plead and prove the Pennsylvania statutes supplied by offering in evidence the opinion of the district court.

Though the fact be ignored that the action of the trial court in giving judgment as it did amounted to the exclusion from the evidence of the opinion of the district court of Pennsylvania in the Da.tz case and to that extent is fully justifiable on the ground that the record discloses nothing which meets the objection that the opinion as offered did “not purport on the face thereof to be the decision of a court of last resort of the State of Pennsylvania, ’ ’ yet the opinion itself goes no further than to hold that a foreign insurance company may he garnished in the Courts of Common Pleas in Pennsylvania and at. the most furnishes a sort of secondary evidence (Charlotte v. Chouteau, 25 Mo. l. c. 473) of the existence of the remedy of attachment and garnishment in the state named and of the jurisdiction generally in such cases of the courts mentioned. The opinion does not set forth the procedure in such cases, the method of instituting them, nor any of the statutory provisions with which we are here concerned.

But it is asserted that under these circumstances we must assume that the statutes of P'ennsylvania are the same as our own. Whatever difficulties stand in the way of assuming the existence in another State of statutes in derogation of the common law need not be discussed here.

Since proceedings by attachment are purely statutory, unless some assumption with reference to the attachment statutes of Pennsylvania be made, appellant is left without any basis for its assignment of error, and if we assume that those statutes are like our own, the only assumption anywise possible, it is demonstrated that the trial court was right in holding that the record of the court of common pleas disclosed a lack of jurisdiction. The transcript is certified to be a full, true and complete record of all the proceedings in that court and shows on its face that no affidavit of attachment was filed at all and that the affidavit in verification of the “statement of claim and cause of action” (the only affidavit shown to have been filed) was not sworn to or filed until after the issuance of the writ of attachment and the attempted garnishment of appellant in that proceeding. Nor does it contain any of the allegations required by our law. Our statute (B. S. 1900, sec. 2301) expressly requires the bond, petition and affidavit for attachment to be filed before' the issuance of the writ of attachment. None ■ of these things is shown to have been done. Defective affidavits may be amended, it is true (Avery v. Good, 114 Mo. 290; Burnett v. McCluey, 92 Mo. 230), but the issuance' of a writ of attachment without the filing of any affidavit for attachment is wholly unauthorized. [Drake on Attachments, sec. 83 et seq.; Waples. on Attachment and Garnishment, sec. 157 et seq; Wade on Attachment, sec. 41; Hargadine v. Van Horn, 72 Mo. 370; Bank v. Garton, 40 Mo. App. 113.]

No service upon respondent in the garnishment proceedings, by publication or otherwise, appears, and nothing that appellant, the garnishee, might do could validate the proceedings as against respondent. [Fletcher v. Wear, 81 Mo. l. c. 531; Haley v. Railroad, 80 Mo. 112.]

Further, no matter whether the court of common pleas -is or is not a court of general jurisdiction, its jurisdiction in attachment and garnishment proceedings, they being special and statutory, is not supported by the presumptions which usually attend the acts of courts of general jurisdiction. [Drake on Attachments, sec. 85.]

The exemplified record offered, however, not only fails to show jurisdiction but affirmatively shows the lack of it.

If there are statutory provisions in force in Pennsylvania different from ours in any- of the respects commented upon, appellant should have offered them in evidence on the trial.

The conclusions announced dispose of all' errors assigned and the judgment must be affirmed.

Brown, C., concurs. •

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


text:
    W. W. NORMAN v. CONNECTICUT FIRE INSURANCE COMPANY, Appellant.
    Division One,
    November 29, 1911.
    This case is decided upon the authority of Norman v. Pennsylvania Fire Insurance Co., mte, p. 576.
    Appeal from Stoddard Cirenit Court. — -Ho». J. L. Fori, Judge.
    Affirmed.

      Bates, Harding, Edgerton <& Bates and Charles Liles for appellant.

      N. A. Mosley, James F. Green and Ernest A. Green for respondent.
   BLAIR, C.

So far as concerns the question determinative of this case, the record is in all respects like that in the case of W. W. Norman v. The Pennsylvania Fire Insurance Company, ante, p. 576, and the cases were evidently tried below, as they were heard here, together.

For the reasons given in the opinion in the case mentioned, the judgment in this case is affirmed.

Brown, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: BOIND, C. PER CURIAM.

text:
    WILLIAM F. JOHNSON et al. v. CHRIS RASMUS, Appellant.
    Division One,
    November 29, 1911.
    1. ABANDONING PUBLIC ROAD: Rights of Abutting' Owners. It has always been competent in this State for the public to abandon the right to highways and public roads. The only limitation is that they must not be abandoned to the injury of the vested rights of abutting owners or persons similarly situated, and these rights may also be abandoned by those entitled to assert them.
    2. -: Proof: Matter in Pais. Proof of the abandonment of a public highway may be shown by evidence of matters in pais as well as by proceedings in court or other public records.
    3. -: Nonuser: Sec. 10446, R. S. 1909. The terminology of the second clause of Sec. 10446, R. S, 1909, shows that it is applicable to the abandonment of any public road by nonuser for ten years continuously. Hence there is no reason why the clause should be construed as having been intended to apply only to roads which the public acquired through imperfect proceedings in the county court, although, it is true, the first clause of the section regulates acquisition through such imperfect proceedings. ■'
    4. -: Acts of Parties Entitled to Highway: Statute of Limitations. The loss of the right to a public road, resulting from abandonment or vacation by the public, accrues from the acts of the parties entitled to the highway, and not from the adverse or hostile possession of others; hence there is no room for the application of the rule that titles cannot be builded against the State xipon the Statute of Limitations.
    5. -¡'Statute of Limitations: Later Legislative Act. Section 10446, R. S. 1909, provides in plain terms that “nonuser by the public for a period of ten years continuously of any public road shall be deemed an abandonment of the same.” That section was adopted in 1887, while the inhibition upon the running of the Statute of Limitations against the State became effective August 1, 1866. Therefore, even if it could' be held that the right of the public to abandon a road was governed by the Statute of Limitations, this would no longer be the case after the adoption of the Act of 1887.

      Appeal from Cooper Circuit Court. — Hon. Samuel Davis, Special Judge.
    Reversed.
    . John Cosgrove and Daniel W. Cosgrove for appellant.

      Williams & Williams for respondent.
    The Statute of Limitations has no application. It does not run against the State and gives no title to the occupier of a public road, no matter how long the occupation may be continued. Section 9432, R. S. 1899', has no reference to a regularly and legally established road, but only to roads where there were irregularities in the proceedings to establish and open them .and where the rights of the public are acquired by user. Such roads and the section may be lost by nonuser. Otherwise as to roads the title to which has been acquired by the public through condemnation or other regular proceedings. State ex rel. v. Busse,-152 Mo. App. 466. (2) There is no estoppel in this case. Nothing said or done by Baker caused the defendant to close up the road.. He undertook, by legal proceedings, to obtain the right to do so and was not influenced in his action by the conduct of the present or former owners of the land. Acton v. Dolley, 74 Mo. 63; Elliott on Roads and Streets (2 Ed.), sec. 884.
   BOIND, C.

This is an action in equity to enjoin defendant from the alleged obstruction of a public road, known as the Boonville and Pisgah road, which it is claimed is necessary for ingress and egress to the farm now owned by complainants, in Cooper county, Missouri. Defendant’s answer admits the former existence of the road, but sets up, that on the 2d of February, 1891, the county court of Cooper county ordered it vacated from its beginning point to the place of its junction with the Boonville and Tip-ton road, and in lieu thereof ordered another road to be constructed so as to connect the beginning point of the old road in a straight line, running east and west, with the Boonville and Tipton road. The answer further states, that from said date until the filing of this suit the old Boonville and Pisgah road had been entirely abandoned by the county and the traveling public, except a short stub running south from the farm now owned by plaintiffs and the common beginning point of the old and neAV road; that at the time of the vacation of the old road and the construction of the new, defendant was a tenant on the farm now owned by plaintiffs; that the then owner of that farm acquiesced in the action of the county court in changing the road as above stated; that defendant had spent a large sum of money in enclosing, improving and cultivating his lands over which the old road ran, and had erected improvements near its former site; that the county had wholly abandoned the old road and had continuously-worked and improved the substituted road; that plaintiffs purchased their farm' in 1903 with full knowledge of all of said proceedings and of the abandonment of said highway, and after a lapse of more than ten years, and were guilty of laches by setting up the claim made in their present suit.

On the trial the proceedings of the county court in reference to the change of this road were introduced in evidence, showing that the change had been made by order of that tribunal, and that the old road had been declared to be vacated. There was also oral testimony showing that thereafter the old road had been entirely abandoned by the traveling public as well as the county authorities, and in lieu thereof the substituted road had been recognized and used as a public highway continuously; that it was a much better road-bed for traveling purposes and furnished a closer connection between the common beginning point of the two roads and the Boonville and Tipton road; that subsequent to the vacation of the old road, this defendant erected feed pens and wells so near the portion of the old road on his lands that they would have to be removed in case it was reopened; that he made the application to the county court to turn the old road into the new road; that he and the consenting property-owner who signed the application owned all of the land over which the old road ran, except about forty acres near its former junction with the Boonville and Tipton road, and except the farm now owned by plaintiffs but then owned by the lessor of defendant; that said lessor was informed by defendant of his action in procuring the new road and acquiesced therein. There was evidence tending to show that the rental value of the farm now owned by plaintiffs might be 75 cents an acre less than it would have been if the old road had not been changed.

There was a decree awarding plaintiffs nominal damages and perpetually enjoining defendant from the maintenance of fences and other improvements with which he had enclosed the road after its vacation and .abandonment by the public. From this judgment defendant appealed.

OPINION.

I. The theory on which the learned trial judge rendered his decree perpetually enjoining defendant was, that the entire proceedings in the county court looking to the change of the old Boonville and Pisgah road into the new road and the partial vacation of the old road were absolutely void, and hence no bar to this suit ;•> and, further, that the defense of the abandonment of said road by the county authorities and by the traveling- public from the time of said proceedings up to the filing of this suit could not be intérposed.

Without stopping- to determine the efficacy of the proceedings in the county court instituted by defendant under the special statute permitting- land owners who desired to cultivate a portion of their land over which a road runs to turn the course of that road to another road to be. established over the land of the petitioner and a consenting- land owner (R. S. 1909, sec. 10,444; R. S. 1899', sec. 9447; R. S. 1889-, sec. 7818; Howe v. Callaway, 119 Mo. App. 256), we will eonsider the defense of abandonment, for if that is available, it is a complete bar to the present action, and renders it unnecessary to discuss the effect of the order of the county court.

It has always been competent in this State for the public to abandon the right to highways and public roads which it acquired in the common law methods of dedication and prescription arising from adverse use, or by the statutory method regulating, first, the opening- of new roads; second, the changing of an existing- road and the substitution of a new one therefor; and, third, the turning of a road running over a portion of the farm of the petitioner, who desires to enclose and cultivate the same, into a changed road running over his. land and that of a consenting landowner. [R. S. 1909', secs. 10,435* 10,447,10’,458,10,461.]

The only limitation upon the abandonment’of an established public road is that it must not be done to the injury of the vested- rights of abutting owners or persons similarly situated. As to this, it is said, “But where no such rights are involved, the public may either abandon or vacate a highway; and where such rights do exist, they may also be abandoned by those entitled to assert them; or the road or street may be vacated by proper legal proceedings and the payment of due compensation. It is proper, therefore, to state1 that a highway may cease to exist either1 by abandonment’ or by vacation according to law.” [Elliott on Roads and Streets (3 Ed.), sec. 1172.] Proof of the abandonment of a public highway may be shown by evidence of matters in pais as well as by proceedings in court or other public records. In 1887 a statute was adopted in this State fixing the length of time of nonuser sufficient to prove an abandonment of any public road. This statute has been carried into each revision since its passage. [R. S. 1889', sec. 7847; R. S. 1899, secs. 9472 and 9694 (duplicates of each other); R. S. 1909, sec. 10,446.] In the first two revisions it was maintained in its original form. In the latter it has been maintained in an amended form. In all stages of its existence, the statute has read: “And nonuser by the public for a period of ten years continuously of any public road shall be deemed an abandonment of the same.” When the statute embracing the above language was originally passed it had a threefold purpose; first, to regulate the length of use necessary to establish a road which had been irregularly created by a county court; second, to provide a term of disuse sufficient to show abandonment of any public highway; and, third, to provide ag;ainst the loss of title by the owner of lands by any adverse possession and use of such lands as a highway, unless such public use was accompanied with an expenditure of public money or labor on the lands. [State v. Muir, 136 Mo. App. 123.] The terminology of the above quotation from the statutes shows that it is applicable to any public road, hence there is no reason why it should be construed as having been intended to apply only to roads which the public acquired through imperfect proceedings in the county court. The three purposes of this statute are separately set forth in order that each of them might have independent meaning and effect. In the paragraph under consideration the Legislature designed to fix the length of time abandonment of the use of a highway must be shown before the right to it as such could be lost to the public. The statute recognized that any public road might be vacated or abandoned according to law, and provided in this paragraph the length of time which the proof must show nonnser before said defense conld arise. It was not designed to confine this defense to that class of roads only, which the public had acquired in a particular way, but the statute by clear and positive terms is made applicable to any highway or public road however acquired. Neither is there any authority for a different view in State ex rel. v. Busse, 153 Mo. App. 466 (cited by respondents). Neither does the fact that the Statute of limitations has not run against the State since August 1, 1866', militate against this conclusion. [City of Columbia v. Bright, 179 Mo. 441.] In cases of the loss of the right to a public road resulting from abandonment or vacation by the public, the result accrues from the' acts and doings of the parties entitled to the highway, and not from the adversary or hostile possession of others; and hence, affords no room for the application of the rule that adverse titles cannot be builded against the State upon the Statute of Limitations. However, the Act of 1887 is a direct, clear, positive legislative provision fixing the period of time within which the public by nonnser will be held to have abandoned a road or highway. If, therefore, it could be held that the right of the public to abandon a road was prevented by the Statute of Limitations, it would necessarily follow that this would not continue after the enactment of the latter act, providing in plain terms for the loss of the highway by an abandonment based on nonuser for a time fixed by the statute. For the subsequent statute would modify in accordance with its own terms the provisions of the former. From the testimony showing the complete abandonment of the old road, except the short portion connecting on its side for a distance of about a furlong the farm now owned by plaintiffs with the new road, it is clear and undisputed there is no claim that any abutting property owner has not abandoned any rights he may have had to reimbursement, or that any action has ever been taken until plaintiffs’ suit. The farm now owned by plaintiffs was then rented to defendant. The evidence shows that his landlord interposed no objection to the vacation of this road or the substitution of the new one. Under these circumstances, we think the defense of abandonment has been substantiated in accordance with the provisions of the governing statute.

There are many ways whereby plaintiffs may have proper and necessary road facilities, if the outlet now connecting their land with the new road is not reasonably sufficient.

The conclusion reached renders it unnecessary to consider whether in the present collateral attack the proceedings of the county court in changing the road in controversy could -be successfully assailed. [Belk v. Hamilton, 130 Mo. 292.] The result is, the judgment in this case should be reversed.

Brown, G., concurs.

PER CURIAM.

The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the

judges concur.