117 Mo. 414 | Mo. | 1893
— This action was brought to obtain an accounting between plaintiff and defendant as tenants in common, and a recovery from the latter, it being charged that defendant had excluded plaintiff from his-rightful interest in the common estate and had also committed waste thereon to plaintiff’s damage in the sum of $3,994, for which judgment was asked with other relief.
There were several amendments of plaintiff’s original statement of the cause of action and to each of them defendant answered, except to the last. As to that, plaintiff’s petition was finally taken as confessed and upon further hearing, a judgment against the-defendant for the sum of $3,447.77 was rendered, February 20, 1888, at the January term of the circuit court of Jackson county, Missouri. At that-term no motion of any sort was thereafter filed by defendant until April 4, 1888, when it moved “to set.
On this record arises at once a question of a technical nature; but one which a proper regard for the correct administration of law forbids us to ignore.
Defendant interposed no motion for new trial or in arrest in the trial court. Its motion to set aside the judgment was filed more than thirty days after the date of the judgment. That motion is not based on any irregularity of procedure. Its grounds assign only judicial errors in the proceedings, the chief of which being (and on that particular stress is laid here) that the facts of the last petition do not sustain the judgment which the trial court gave.
To warrant a review of such errors, upon an appeal taken in the circuit court, the statute law requires that such appeal be taken at the term at which the final judgment occurs. (Revised Statutes, 1889, sec. 2248.) An undisposed of motion for new trial or in arrest, seasonably filed, will'suspend the finality of a judgment (for the purpose of appealing) until such motion be determined. But where no motion of that kind is interposed, and the term of court ends, the pendency of such a’ late motion as that- in question now, to set aside the judgment, will not have the effect to keep the antecedent record open until the next term for a general review, as a matter of right.
The trial court, in its discretion, after expiration of time to move for a hew trial or in arrest, may set aside a judgment during the term at which it was rendered upon any ground that may satisfy the conscience of the court. Whether it may exercise that discre
A motion to set aside a judgment for irregularity may be entertained by the trial court within three years after the judgment entry (Revised Statutes, 1889, sec. 2235), and a ruling upon such a motion may be reviewed upon appeal taken in season, with reference to that ruling. But such an appeal at a term subsequent to that at which the original judgment becomes final, cannot properly be extended to secure a review of errors that may have entered into the judgment. Even giving the motion “to set aside” a standing similar to-one based on an irregularity of procedure, it could not rightly be held to open up the same range of review of errors which a writ of error would secure. To accomplish that object, under the law of Missouri, the appeal in the trial court must be made at the term at which the judgment becomes a final one. Lengle v. Smith (1871), 48 Mo. 276.
The present appeal, from the’ decision overruling the “motion to set aside,” is groundless, so far as any irregularity is concerned; and,, having been taken too late to reach a review of any alleged errors with which the- original judgment may be tainted, the only appropriate action to be taken is to affirm the judgment, which is done accordingly. The other judges of this division concur in affirming, for reasons given in a separate opinion. '
— By the opinion just filed it is held ■that the appeal taken in this case brings nothing before this court for review. To this ruling I do not agree, nor do I agree to any of the reasons assigned therefor.
To an understanding of this appeal it is necessary to set out a concise history of the suit. As it now •stands, it is an action to require the defendant to account for the use of one undivided half of a strip of land used by the defendant as a right of way, and for the one-half of rock taken therefrom. The plaintiff filed an amended petition, to which defendant filed answer. It was set up in this answer, among other things, that if the plaintiff and defendant were tenants in common, then the plaintiff’s remedy was an action of account. Thereupon the plaintiff filed a second •amended and supplemental petition, setting out at great length the grounds for an accounting. At the ■October term, 1887, the defendant moved to strike out this amended and supplemental petition because it stated an entirely new cause of action, which motion was overruled, and the defendant excepted and at the same time filed a bill of exceptions. The defendant •did not file any other or further answer.
The cause came on for trial at the January term, 1888, and the defendant failing to appear, the plaintiff produced evidence and obtained judgment for $3,447. The defendant filed no motion for new trial or in arrest. At the same term, but more than four days after the rendition of the judgment, the defendant filed a motion to set the judgment aside. This motion was ■argued and submitted at the same term, the January “term, but the court took the same under advisement until. the next term, it being the April term, at which
Two affidavits were read in evidence on the hearing of the motion to set aside the judgment, showing the reasons why the defendant’s counsel failed to appear at the trial; but the fact that the cause was heard when counsel for defendant were absent is not made a ground for setting the judgment aside. Of the twenty grounds assigned in that motion, those now relied upon fall under these heads: First, the court erred in overruling defendant’s motion to strike out the supplemental petition; second, the amended and supplemental petition fails to state any cause of action whatever.
Our code of civil procedure is explicit in this, — that the objection that the petition does not state facts suf
But it is said this appeal is of no avail to defendant because not allowed until the term after ■ that at which the judgment was rendered. A. motion for new trial filed at the proper time and term and continued over to the next term, suspends the judgment, so that a bill of acceptions may be filed and appeal taken at the term when the motion is overruled. Such a bill and appeal will bring up for review all the exceptions
As a general rule, a judgment cannot be set aside by the court rendering it after the term at which it was rendered; but during the term it may be set aside. And a motion filed at that term for that purpose and continued over to the next term suspends the judgment, so that' the motion may be sustained at the succeeding term. Until the motion is disposed of, the judgment is not a finality. Memphis v. Brown, 94 U. S. 715; Amy v. Watertown, 130 U. S. 301; Baker v. Baker, 51 Wis. 538; Windett v. Hamilton, 52 Ill. 180. While, under the authorities before cited, this court will on appeal or writ of error reverse for errors appearing upon the face of the record proper, though no exception was made in the trial court, still it is proper practice to make the objection in the trial court, even where the alleged defect is a radical one appearing on the face of the record proper, thus giving that court an opportunity to correct the errors. A motion to set aside a judgment strikes at its validity, and when filed at the term at which the judgment was rendered and continued to the next term has the effect to suspend the judgment so that that the court can act upon the motion the same as at the prior term. The proceedings remain in the breast of the court until the motion is disposed of, and the appeal taken at the time when
It is further alleged that the railroad was built and in operation over said land on and before sixth of July, 1872, and has been operated thereon ever since that date; that the “defendant’s occupancy of said right of way * * * has been of such a nature as to preclude the use and occupancy of the same by the plaintiff so as to derive any benefit or profit therefrom;” that from 1872 to the date of the deed from plaintiff to Darling the defendant quarried and removed from the strip of land large quantities of stone and has refused to account for the same and the use •of the land. An account for the one-half of the stone and use of the property is then set out amounting to $3,994 with a prayer for accounting and for judgment.
The defendant company, it will be seen, has had possession of the strip of land since July 6, 1872, to the commencement of this suit in August, 1883, and during that time operated its road thereon, the plaintiff being in the possession of the residue of the tract. These facts, it is urged by the defendant, show such an acquiescence on the part of the land owner as to amount to a waiver of his rights, save the right to be •compensated for the Value of the land, estimated as of .the date of the first entry by the defendant.
Baker v. Railroad, 57 Mo. 265, was also an action of ejectment. The plaintiff had agreed to relinquish the right of way on condition that the company should comply with the law in regard to fencing and making cattle guards and farm crossings, and the company took possession and constructed its road by the consent of the land owner, but did not perform the conditions upon which it was to receive the deed of relinquishment. In that case there was a clearly proved permission given to the company to construct the road over the land, and because of this consent it was held the plaintiff could not eject the company. By attending to the facts of the cases just cited, it will be seen that they hold the land owner may waive prepayment ■of the compensation, and when he does this, or permits the company to take possession and construct its road, he cannot treat the company as a wrongdoer and sue in ejectment or trespass. The permission or license to enter and construct the road may be inferred from attending circumstances. But it is equally well
The doctrine that the public has an interest to be protected after the railroad has been constructed, has been invoked in some adjudicated cases to protect the company, but such a doctrine cannot justify a wrongful entry and use of private property. The constitution secures the right to have the compensation for the property taken paid to the owner or into court for his use before his property rights are disturbed; and this right guaranteed by the present constitution and former statutes cannot be nullified by any supposed public interest. In this state the duty of instituting proceedings to condemn is devolved upon the railroad company, and the company must obtain the assent of the property owner to enter and construct its road or procure the right so to do by condemning the property, otherwise it will be a wrongdoer, and the property owner has the same remedies that he would have against any other like wrongdoer. The mere fact that he saw the road build upon his land, and did not object, will be no protection to the company, unless such want of objection and the other circumstances justify the inference of consent on his part. Speaking of some of the decided cases Mr. Lewis says: “So far as regards mere acquiescence as an estoppel, it seems to us the cases aré not well founded. There is no law which compels a man to protest against a wrongful
While it appears from the petition that defendant has been in possession of the strip of land from 1872 to the commencement of this suit in 1883, and during that time operated its road over the same, still, it does not necessarily follow that plaintiff or any of his grantors assented to such use and occupancy. Such a conclusion cannot be drawn in the face of the allegation that defendant or its predecessor built its road on the land without having acquired any title thereto or interest therein. The holders of the legal title could have maintained ejectment at any time from 1872 to May 17, 1882, 'at which date the defendant procured a deed from Park for an undivided one-half of the strip occupied as a right of way. The defendant was also liable for the rental value of the property, and for waste in such an action, or in a suit brought for that purpose only, on the facts stated in the petition in this case. Whether the plaintiff could have maintained such a suit on his equitable title and possession we need not determine; for the deed from Park to him not only vested in him the legal title to the undivided half of the land used as a right of way, but it assigned to him all claims for damages which Park had or held against the defendant. Such a claim for damages may be assigned. Chouteau v. Boughton, 100 Mo. 406. It follows from what has been said that the petition shows
One tenant may recover in ejectment against a cotenant by showing that defendant ousted him of did some act amounting to a total denial of his rights as such cotenant. 1 Revised Statutes, 1879, sec. 2248. Should the plaintiff recover possession he would, under our statute, be entitled to recover damages for waste and for . rents and profits. Another section of the statute, 3111, makes ope tenant in common liable to a cotenant for waste. Where the land is free to all of the tenants in common so that each may enter and -enjoy the premises and one of them enters, he cannot be made to pay rent to the other cotenant who neglects or refuses to do the same. But where one tenant occupies the whole of the land and excludes his coten
Trespass will lie in favor of an ousted cotenant. Freeman on Cot. & Part. [2 Ed.], sec. 300; 11 Am. & Eng. Encyclopedia of Law, 1101. An actual ouster or turning out is not necessary, but the act or declaration constituting the ouster must be unequivocal and notorious. Warfield v. Lindell, 30 Mo. 272. Ouster is the actual turning out or keeping excluded the party ■entitled to the possession of any real property. Bouvier’s Law Dictionary. Any resistance preventing the plaintiff from obtaining effective possession of the land of the cotenancy is an actual ouster. Freeman on Cotenancy and Partition [2 Ed.], sec. 301. The petition shows that defendant continued to use the property as and for a railroad right of way. The property being farm land, such a use must of necessity have excluded the plaintiff. Besides this it is in terms .alleged that defendant’s occupancy of the right of way has been of such a nature as to preclude the use and •occupancy of the same by the plaintiff so as to derive any benefit or profit therefrom. An ouster is sufficiently disclosed by the petition. It follows that the plaintiff could have maintained ejectment for his •interest in the land, and in that or an independent suit recovered damages for rents and waste.
The second amended and supplemental petition was framed on the theory that the suit was one in equity for an accounting; and the further contention is that the judgment cannot stand, because if the petition discloses any cause of action it is one of law. The first amended petition was framed on the theory that the suit was one at law, and the charge seems to have been made because the defendant insisted in its answer to the first amended petition that the suit should be in equity. We pass over the question made by the plaintiff that the defendant is now estopped from questioning his right to sue in equity. If we are right in what .has been said, the plaintiff has, on the face of his last pleading, on action at law for all the damages sued for. Nor is it necessary to say whether he may or may not also sue in equity on the facts disclosed. It is enough for all the purposes of this case on the present record, to know that the petition sets forth facts sufficient to constitute a cause of action at law or in equity; for the judgment rendered is such as flows from the alleged facts.
And, if it be true that the petition discloses two causes of action which should have been separately stated, still that can be of no avail here; for the remedy in such a casé is by motion. Mooney v. Kennett, 19 Mo.