| Mo. Ct. App. | Jun 14, 1881
Lead Opinion
delivered the opinion of the court.
Our Code of Practice provides that “the plaintiff may unite in the same petition several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, where they arise out of * * * •injuries, with or without force, to person or property. * * * But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligently distinguished.” Rev. Stats., sect. 3512. Construing this statute, the Supreme Court has several times held that where a count in equity is united in the same petition with a count at law, there must be separate trials -and separate judgments. Jones v. Moore, 42 Mo. 413" court="Mo." date_filed="1868-03-15" href="https://app.midpage.ai/document/jones-v-moore-8002406?utm_source=webapp" opinion_id="8002406">42 Mo. 413, 420; Henderson v. Dickey, 50 Mo. 161" court="Mo." date_filed="1872-03-15" href="https://app.midpage.ai/document/henderson-v-dickey-8003581?utm_source=webapp" opinion_id="8003581">50 Mo. 161, 166; Crowe v. Peters, 63 Mo. 429" court="Mo." date_filed="1876-10-15" href="https://app.midpage.ai/document/crowe-v-peters-8005447?utm_source=webapp" opinion_id="8005447">63 Mo. 429, 435.
The petition in the present case contained two counts: Tirst, a count for damages for trespass to real property ; and, second, a count for an injunction to restrain the continuation of the trespass. The second count did not repeat the allegations with regard to title and possession which were contained in the first count, but referred to them in the following language: “And for a further cause of action
It is urged that this course of proceeding was erroneous, for two reasons : 1. That the second count is not complete in itself, so that there is really but one count in the petition, which blends together legal and equitable causes of action. This course of pleading has been frequently condemned by the Supreme Court; and the objection would be a good one if it were really applicable to the pleadings in this case. There is no doubt, especially where one count is for a legal, and the other for an equitable cause of action, that each count must be good in itself, and cannot be aided by á preceding count, unless such preceding count is expressly referred to. Clarke v. Iron Co., 9 Mo. App. 446" court="Mo. Ct. App." date_filed="1881-01-25" href="https://app.midpage.ai/document/clark-v-whittaker-iron-co-8258402?utm_source=webapp" opinion_id="8258402">9 Mo. App. 446. It seems to be the rule in Indiana, where they have a code of pleading such as ours, that one paragraph, as it is there termed, in a pleading, cannot be aided by reference to another. Mason v. Weston 29 Ind. 561" court="Ind." date_filed="1868-05-15" href="https://app.midpage.ai/document/mason-v-weston-7037773?utm_source=webapp" opinion_id="7037773">29 Ind. 561; Silvers v. Railroad Co., 43 Ind. 435" court="Ind." date_filed="1873-11-15" href="https://app.midpage.ai/document/silvers-v-junction-railroad-7039717?utm_source=webapp" opinion_id="7039717">43 Ind. 435, 445; Potter v. Earnest, 45 Ind. 416" court="Ind." date_filed="1873-11-15" href="https://app.midpage.ai/document/potter-v-earnest-7039973?utm_source=webapp" opinion_id="7039973">45 Ind. 416. But we are unable to perceive any reason, cither of policy or convenience, which should carry the rule to this extent. We prefer the common-law rule, which permitted the pleader to save the repeating of matter contained in a preceding count, by making express reference to the preceding count for such matter. This, so far as we know, has been the practice of good pleaders in this State. It was done in
We do not wish to be understood as questioning the propriety of the form of the judgment which was entered in this case. The rule above quoted, which requires separate trials and separate judgments, is not, as we understand it, infringed by embracing the two judgments in a single record entry, provided the proper recitals are made, which,, in the present case, appears to have been done. Aside from the bill of exceptions in this case, the record, as it reads, would imply that there were in fact separate trials, — a trial before a jury of the law count, and a hearing before the judge of the equity count; but the bill of excep
The judgment is reversed and the cause remanded.
Rehearing
delivered the opinion of the court on a motion for rehearing.
A motion for rehearing filed by the plaintiff in this case has served to call our attention to the fact that the opinion •of the court already delivered does not dispose of the question arising in the plaintiff’s appeal, whether the court Tightly refused to enjoin the continuation of the trespass and dismissed the second count for want of equity. It is not necessary to grant a rehearing in order to dispose of this •question, as the briefs and arguments already filed afford •us all the aid necessary. We will therefore overrule the motion for rehearing, and will look into the record for the purpose of satisfying ourselves whether the second count •of the petition, which prayed for an injunction against the trespass, was rightly dismissed for want of equity ; for it is •competent for us to reverse the judgment upon the law count and affirm it upon the equity count. Crowe v. Peters, 63 Mo. 429" court="Mo." date_filed="1876-10-15" href="https://app.midpage.ai/document/crowe-v-peters-8005447?utm_source=webapp" opinion_id="8005447">63 Mo. 429. See Gamble v. Gibson, ante, p. 327.
Our statute relating to injunctions contains this provision : “ The remedy by writ of injunction * * * shall exist in all cases where an injury to real or personal property is threatened, and to prevent the doing of any legal wrong, whatever, whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages.” Eev. Stats., sect. 2722. We understand this •statute to be merely an affirmance by the Legislature of a pre-existing rule of equity jurisprudence ; and the question which we have to consider is, whether an adequate remedy •can be afforded for the trespass complained of, by an action ior damages. A court of equity will never grant an injunc
How does the present case stand with reference to these principles? Stating it most strongly in favor of the plaintiff, it may be assumed that the plaintiff has long been the owner of a lot of ground in South St. Louis, which fronts-on the Mississippi River, and which is chiefly valuable for that reason; that in 1872 the defendant’s grantor, the-Pacific Railroad, tortiously entered upon this lot and built a railway spur or side track diagonally across it, upon a. trestle-work, about twelve feet high ; and that the defendant’s grantor, the Pacific Railroad, and the Atlantic and Pacific Railroad Company, under a lease from .the Pacific-Railroad, and since the beginning of the year 1877, the defendant itself, have been using this track by running-trains back and forth over it at frequent intervals, — and all-this without the consent of the plaintiff and against her will,.
What more is this than a partial or total disseisin of the plaintiff, for which she may have adequate compensation in an action at law for damages ? There are here none of the elements'which are found in cases where courts have enjoined trespasses upon real property; no severing from the realty and carrying away of valuable timber, stone, or ores ; no injury to the inheritance; no destruction or invasion of the plaintiff’s habitation; no insolvency of the defendant. Without intimating an opinion whether it is a proper case for ejectment, it is clear that she may maintain an action for the damages which she has sustained through the trespass; or that, waiving the tort, she may maintain an action as on an implied contract for the rental value of the premises during the time the defendant has thus occupied them. We see nothing in the facts of this case to distinguish it in principle from the constantly recurring case where one man tortiously occupies the vacant land of another, puts a dwelling-house or other building upon it, and goes in and out of it by himself and his servants from day to day. In such a case, if nothing further appears, it is clear that an injunction will not be awarded ; for to do so would be to substitute the discretion of the judge in a suit in equity for the' verdict of a jury in an action of trespass or ejectment — a thing which our law does not countenance.
“ Where the trespass complained of,” says Mr. High, “ consists in the erection of buildings upon the complainant’s land, a distinction is taken between the buildings when in an incomplete, and when in a finished state. And while the jurisdiction is freely exercised before the completion of the structures, yet if they have been completed, the relief will generally be withheld, and the person aggrieved will be left to his remedy by ejectment.” 1 High on Inj. (2d ed.), sect. 707. We do not perceive a distinction in principle between the case of the erection of a building, and the erection of a side-track by a railway company.
We also agree with the learned judge of the Circuit Court that this is not a case where an injunction ought to go on the ground that it is necessary to prevent a multiplication of suits. “ To warrant the interference in such cases,” says Mr. High, “ there must be different persons asserting the same right, and the principles upon which relief is granted have no application to a repetition of the same trespass by one and the same person, the case being susceptible of compensation in damages.” 1 High on Inj., sect. 700. “It has never been supposed,” said Lumpkin, J., in Hatcher v. Hampton, 7 Ga. 49" court="Ga." date_filed="1849-07-15" href="https://app.midpage.ai/document/hatcher-v-hampton-5551274?utm_source=webapp" opinion_id="5551274">7 Ga. 49, 52, “ that because one person chooses daily to pull down the fence of another, this would authorize the courts of chancery to restrain the intruder by injunction.”
The learned judge also stated in his opinion that the second count would not support the prayer for an injunction, because, it was not complete in itself, without reference to matter contained in the first count. Upon this point, he said in his opinion: “The second count of the petition,taken by itself, is incomplete. It is only by reference to the first count, and by adopting some of the averments contained in that count, that any cause of action is stated. As I understand the rules of pleading, when equitable and legal causes of action are joined in one petition, each must be complete in itself. Before the Code they could not be joined at all, and under the Code, though they may be embraced in one petition, yet they must be separately stated,
We considered this question in our former opinion, and our conclusion was that we did not consider this bad pleading. We find that the question was before this court in the case of Stone v. Wendover, 2 Mo. App. 247" court="Mo. Ct. App." date_filed="1876-05-16" href="https://app.midpage.ai/document/stone-v-wendover-6613526?utm_source=webapp" opinion_id="6613526">2 Mo. App. 247, 250, though that was not a case where one count was for a legal and another for an equitable cause of action ; and it was held not necessary to repeat, in the second count, facts already stated in the first count.
It is not necessary, however, to decide this question in the present case, so far as it relates to cases where one count is a count at law and the other is a count in equity ; and we prefer to be understood as not deciding it.
The judgment of the Circuit Court dismissing the second count of the plaintiff’s petition for want of equity is affirmed.