Missouri Pacific Railway Co. v. McCarty

| Mo. | Oct 15, 1888

Sherwood, J.

Ejectment for certain Jots in Kansas City. The petition was filed September 23, 1881; process issued therein against said defendant, John McCarty, returnable to the October term, ■ 1881, of said court, which was duly served. At said October term, 1881, said defendant, John McCarty, appeared to said action, and filed his answer therein, denying each and every allegation in said petition. After-wards, at the April term, 1882, of said court, and on the twenty-eighth day of April, 1882, the death of said defendant, John McCarty, was suggested of record. Thereafter, at the same term, and on June 30, 1882, respondent filed, in said court, an amended petition, making appellants, Ellen McCarty, Cora Francis, and Ellen May McCarty, sole defendants. The original petition against John McCarty was also amended by striking out the name of said John McCarty, and inserting the name of .appellants as sole defendants, and it was ordered that summons be issued against them, returnable to the néxt term of said court.

On the original petition, as thus amended, summons issued, and was duly served on them September 22, 1882, returnable to the October term, 1882, of said court, against appellants. Nothing was done in said cause, and no record entry therein was made at said October term, 1882. At the April term, 1883, of said court, and on the seventh day of April, 1883, appellant Ellen McCarty filed her motion to dismiss this action, on the ground that said action did not survive as against her, and also that said action had abated, by reason of the discontinuance at the October term, 1882.

Afterwards, at the same term, and on the ninth of July, 1883, on application of respondent, it was ordered that a writ of summons be awarded against appellants, returnable to the next term of said court. This writ of summons, in the usual and ordinary form, attached to respondent’s amended petition of June 30, 1882, was issued July 13, 1883, and personally served July 16,. ■1883, on appellant Ellen McCarty, she being the first person served, and as shown by the sheriff’s return, ‘ ‘ by delivery of a copy of the writ to each of the within named defendants, Cora F. McCarty and Mary E. McCarty.” It does not appear from said return that appellant “Ellen Mary McCarty” was served with said writ, other than by the name of “Mary E. McCarty,” appearing in said return.

At the October term, 1883, of said court, andón the eighteenth day of October, 1883, the motion of appellant Ellen McCarty to dismiss was overruled, and on the nineteenth day of October, 1883, leave was granted her to answer on or before November 1, 1883, on which day she filed a separate answer. This answer appears to have been lost; and on April 22, 1884, and at the April term, 1884, of said court, appellant filed a substituted answer to said petition. At said April term,'1884, it was suggested that respondents Cora F. and Ellen May were infants, and on application of respondent the court appointed their mother, Ellen McCarty, guardian ad litem for said infants, who, on said April 22, 1884, filed a separate plea and separate answer to said petition.

The answer of appellant Ellen McCarty contains a general denial and the following allegations, to-wit: That she is the widow of John McCarty, deceased ; that said John McCarty obtained judgment against the Atlantic & Pacific Railroad Company,'in the Jackson circuit court, for ten thousand dollars, for damages for personal injuries; that, thereafter, in February, 1872, said Atlantic & Pacific Railroad Company and said John McCarty made a settlement of said judgment by which said company agreed to, and did pay said McCarty two thousand dollars; agreed to give him employment for life as its watchman, and also to deed him the premises now in controversy, and build a dwelling-house thereon of the value of at least one thousand dollars; that, in consideration and performance of said agreement, said McCarty released said judgment; said railroad company built said dwelling-house, and on the - day of --, 1872, put said McCarty in possession of the same, where he lived until the date of his death; that, after he was so put in possession, he, with his family, among whom was the defendant, now his widow, made lasting and valuable improvements thereon, of the value of two thousand dollars ; that said railroad company had full knowledge of the possession, claim and improvements of said John McCarty, made no objection thereto, but permitted the same, and that, by reason thereof, said company was estopped from making or claiming title or .interest in said premises; that plaintiff herein is the successor of said Atlantic & Pacific Railroad Company, and as such has assumed all and singular the rights, and incurred the liabilities of said company ; that said premises have been held by this defendant adversely ever since the date aforesaid for more than ten years prior to the filing of the suit herein against her.

The separate answer of the infant appellants, Cora F. and Ellen May McCarty, by their guardian ad litem, alleges that plaintiff ought not to have or maintain its action against them for the reason that said action was brought against John McCarty, father of said infants, and that during the pendency of said action said McCarty, who was the sole and only defendant, died, and his death was suggested of record of said court at the-term of said court, and that more than three terms of said court were held, after such suggestion of death of said John McCarty, before scire facias was issued or served upon the defendants ; that said infants were never legally or properly made parties to this action ; that said cause of action as originally instituted did not survive against said infants, and that said action abated by the death of said sole defendant John McCarty. For further answer, they make a general denial, and also allege that said infants, with their said father, • entered into the lawful possession of said premises in 1872, and have ever since held the same adversely as their own property for more than ten years before any scire facias or other service was had upon them as parties herein.

The reply to each of these answers is a denial.

On the trial, it was admitted that both parties claimed under the Pacific Railroad Company, as the common source of title.

I. As has been seen the defend ant Ellen McCarty relied on such a contract made with her husband as would have entitled him to have obtained a decree for specific performance against the defendant company, and also relied on adverse possession of the lots for ten years. Her testimony would not authorize a decree for specific performance, for the reason that it was largely made up of what her husband had told her, and as to what she knew of her own knowledge it afforded no basis whatever for equitable relief of the character mentioned. In short, her testimony was not of so clear and forcible a nature as to leave no room for reasonable doubt in the mind of the chancellor hearing the cause. Berry v. Hartzell, 91 Mo. 132" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/berry-v-hartzell-8008921?utm_source=webapp" opinion_id="8008921">91 Mo. 132, and cas. cit. On the contrary, it was perhaps the most inconclusive and worthless testimony ever offered to support such an equitable defense as that pleaded in the case at bar.

II. Nor did the plea of the statute of limitations fare any better under the testimony of said Ellen. In her examination in chief, she states that she thinks her husband and herself moved upon the premises in 1872. On her cross-examination, she says they moved on the place after the settlement, but the record shows that the settlement of the judgment, by marking it satisfied, did not occur till July 8, 1873, and how long after this that the house was built by the company for them and they were put into possession does not appear. The bar of the statute had therefore not run, or what amounts to the same thing, was not shown to have run, against the plaintiff company, — even conceding that John McCarty’s possession was really adverse. ■

III. Nor could the irregularities which attended the amending of the petition, and the striking out the name of Jolm McCarty from tbe original petition, and the interlineation of the names of the defendants therein, strengthen the case of the defendants, nor aid the running of the statute. The defendants who were served with process were served. before the statute of limitations could by any possibility have run; and whether the action was formally revived against them can cut no figure in the case, as they were brought into court, and this is all which could have been done even had the action been formally revived.

IV. And as the minors had been duly served with process, the delay which occurred in appointing for them a guardian ad litem did them no hurt.

The action of the court in instructing the jury to find for the plaintiff was proper, and judgment affirmed.

All concur , except Barclay, J., not sitting.