225 Mo. 210 | Mo. | 1910
At the suggestion of relator, made in his petition filed herein, on July 23, 1909, one of the judges of this court issued a preliminary rule to respondents, requiring them to show cause why a writ of prohibition should not issue herein made returnable October 12, 1909.
The facts, as appear from the petition and the return made thereto, are substantially as follows:
Hugo Muench, one of the respondents, at all the times herein mentioned, was one of the judges of the circuit court of the city of St. Louis, and the other respondents, as well as the relator, were residents of said city. On December 6, 1907, respondent Robert R. Hutchinson filed in the circuit court of said city his petition for an injunction against relator as defendant, claiming relief in the matters hereinafter stated; and on the same day said Hutchinson, as curator of respondent Mary H. Anderson, filed her petition also against relator as defendant in said court, praying for same relief. The relator filed a demurrer in each of said causes, raising the question of the jurisdiction of said court over the subject-matter of each of said suits. On February 18, 1908, by agreement of parties, said causes were, by order of court, consolidated, Mary H. Anderson in the meantime having reached the age of majority. The petitions in said causes were identical in substance and they will, for that reason, hereinafter be referred to as one case.
“Relator further states to the court that said petition of respondents thereupon proceeded to set up that the relator had erected upon that portion of Barnes Avenue, lying nest to his lots Nos. 5 and 6 and within the middle line of said Barnes Avenue, a certain railroad embankment and switch track and a certain fence, and that said relator had suffered to remain upon the middle line of said street fifty feet wide a certain fence; that by reason of said fence and embankment respondents were deprived of their easement of ingress and egress upon and over said Barnes Avenue and said street fifty feet wide lying nest to the lots of the relator within the middle line of said! streets: Wherefore, the respondents asked for damages and that said embankment and fences shall be removed,” and that he be permanently enjoined from replacing or maintaining them in said streets, etc.
“Relator states that under the Constitution and laws of the State of Missouri, and more particularly by section 564 of the Revised Statutes 1899', it is provided that suits for the possession of real estate, or whereby the. title thereto may be affected, shall be brought within the county within which such real estate, or some part thereof, is situated; that by the allegations of respondents’ petitions filed herein, all of the real estate mentioned in said petitions as belonging to respondents and relator, was situated in the county of St. Louis, State of Missouri, and without the limits of the city of St. Louis, but that said suits, and both of them, were brought in the circuit court of the city of St. Louis as aforesaid and were then pending before Judge Hugo Muench, respondent herein, as aforesaid; that from the allegations of said petitions, and both of them, it appears that said streets had been
“Tour relator further states that by the laws of the State of Missouri, as aforesaid, the said circuit court of the city of St. Louig and Judge Muench, the respondent herein, as one of the judges of said court, was without jurisdiction' of the subject-matter to try said causes; that your relator, as will appear from the files in said causes submitted herewith, filed in both actions demurrers to said petitions, and for grounds for said demurrers stated that said court was without jurisdiction of the subject-matter of said actions, in that the same was for the possession of and affected title to real estate situate in St. Louis county, but that respondent, Judge Muench, overruled said demurrers and thereafter overruled the general demurrers filed by relator; that thereafter relator filed answers in said causes, in which answers relator set up' the plea to the jurisdiction of said circuit court of the city of St. Louis and claimed title in the half of said streets, lying nest to his said lots 5 and 6, by reason of the abandonment of the said streets, and for these reasons, together with other defenses, stated that the respond
“Relator further states that by said decree his title to real estate in the half of said streets adjoining said lots 5 and 6 is directly affected.
“And relator further states that, under the Constitution and laws of the State of Missouri, it is made the duty of the Supreme Court to see that the circuit court of the city of St. Louis and all divisions thereof and the judges thereof, as well as other inferior courts, keep within the bounds and limits of their respective jurisdictions prescribed for them by the statutes and Constitution of the State of Missouri:
“Relator states that said proceedings in the circuit court of the city of St. Louis, before Hugo Muench as Judge of Division Number One thereof, are in violation of the Constitution and laws of the State of Missouri and to the manifest damage, prejudice and grievance of the relator and of the public, and are wholly illegal and void; that said circuit court of the city of St. Louis, and said Hugo Muench, as judge there
“Wherefore, your relator, imploring the aid of this Honorable Court, prays to be relieved and that he may have the State’s writ of prohibition directed to the said Hugo Muench, judge of the said court, and to the said Robert R. Hutchinson and Mary IT. Anderson, respondents herein, to prohibit them and him from pursuing and holding the pleas aforesaid, and from taking any further cognizance or making any further order in the said causes before him, touching or concerning the premises.”
The return is quite lengthy. It set out in full the petition, demurrer filed thereto, the answer, the findings of facts made by the court, and the decree of court entered in said cause. Much of this, however, is foreign to the legal proposition involved in this case, and may for that reason be omitted from this statement. The principal facts of that case are sufficiently indicated by the finding of facts made and filed by the court therein, which is as follows:
“These two cases having been, by consent, tried together, upon the same evidence, and the defendant (who is the same in each case) having requested that a finding of facts might be made therein, the following are therefore by the court found to be the facts, applicable alike to each case:
“It is found that the common source of title to all the property or real estate involved in these causes, was one E. C. Hutchinson, who acquired the same from John Lay and wife by deed dated December 20, 1854,
“That defendant Gavin now owns, and at the several times complained of did own lots 5 and 6 of said Hutchinson’s subdivision, having acquired the same by mesne conveyances from the common source of title; that the first of said conveyances of lots 5 and 6 was executed by said E. C. Hutchinson to one John Q. Bnrd, which deed is on its face dated June 18, 1870, but in fact was not acknowledged or delivered until the 6th day of July, 1870, to wit, after the acknowledgment and recording of the plat of Hutchinson’s subdivision, and the dedication of the streets aforesaid, and that both in and by said deed of Hutchinson to Burd, as also in and by the deed from Henrietta Robeling et al. to defendant Gavin (dated June 21, 1905, and recorded in book 167, at page 75, records of the county of St. Louis), said lots 5 and 6 are described as being bounded on the south by Barnes Avenue, and on the east by a street fifty feet wide.
“That on March 27, 1905, defendant Gavin filed with the county court of the county of St. Louis, a written application or petition, in and by which, as owner of said lots 5 and 6, he asked for an order of said county court permitting him to build and operate
“And the court further finds that said Barnes Avenue, from about the time of said dedication and the filing of the plat of Hutchinson’s subdivision, was used as a road or passageway by the persons immediately adjoining the same, and a few other persons in that neighborhood, both for vehicles and foot passage; but that the same was never opened towards the west, or beyond the property in Hutchinson’s subdivision, and was therefore not in general use as a public thoroughfare; and that for much of the time since said dedication, and up to this time, there was a gate, or a set of railings at a point east of Hutchinson’s subdivision, across said Barnes avenue, projected east-wardly, which gate was designed to, and did, keep cattle from the field's and premises of tenants in said Hutchinson’s subdivision, but which gate could readily be opened, and was opened by all persons intending to use Barnes Avenue west of said gate, for purposes of driving or walking.
“That heretofore, and for more than ten years prior to the institution of this action, there was a substantial fence in front of lots ’5 and 6, and practically upon and along the northern line of Barnes Avenue according to said dedication; and there was also a fence, during the same time, running along the center line of said 50-foot street to the east of lot 5 of said subdivision, and that said 50-foot street has never at any time been used as a public or traveled street; but said western half' thereof has for about fifteen
“And I do further find from the evidence that the defendant, Stephen J. G-avin, after the purchase by him of said lots 5 and 6, and after the dismissal of his said petition by the county court of St. Louis county, did proceed to erect a fence along the center line of said Barnes avenue in front of said lots Nos. 5 and 6, extending east to the point where the same struck the projected center line of said 50-foot, street, and did further build a fence from that point northwardly along said projected center line until the same struck and connected with said old fence along the center line of said 50-foot street; and .that, at or about the same time, said defendant caused to be erected upon and along the northern half of said Barnes Avenue, from a point about midway the southern boundary of said lot 6, thence west, in front of lots 10 and 11 of said subdivision, and along said Barnes Avenue, to a point at or near the main line of a railroad, a high embankment varying between 2 and 7 feet in height, which embankment is used and occupied by said defendant to carry switch tracks for his private use, and which obstructions in Barnes Avenue were so erected and imposed without the consent of plaintiff Hutchinson, who is the owner of lot 11, and plaintiff Mary H. Anderson, who is the owner of lots 8, 9 and 10 of said subdivision; and that the property of said plaintiffs is damaged to some extent not sufficiently established as to amount by the evidence, and is seriously.inconvenienced in use and accessibility by reason of the fences, embankments and other obstructions placed in said Barnes Avenue by the defendant, and the attempted abolition of said street by defendant. ’ ’
The court then gave certain declarations of law, and found for the plaintiffs, the respondents here, and against the defendant, the relator here, and perpet
The return also shows that the demurrer filed by relator in that case, questioning the jurisdiction of the circuit court of the city of St. Louis to try the cause, was, by that court, overruled; also that relator raised the same question by his answer filed therein, wMch was by the court ignored and not passed upon.
I. The question here presented is not, did the circuit court of the city of St. Louis correctly decide the case of Robert R. Hutchinson et al. v. Stephen J. Gavin; but the question.here is, did that court have jurisdiction over the subject-matter of that suit, and did it have the authority to try and adjudicate the matters and things therein involved?
Counsel for relator deny it had such jurisdiction and authority, while counsel for respondents maintain the affirmative of that proposition. This briefly and sharply presents the legal proposition involved in this proceeding.
Relator was the owner of lots 5 and 6 of Hutchinson’s subdivision, mentioned in the pleadings, and they fronted on the streets therein named.
The petition in said cause alleged, among other things, that said streets had not theretofore been opened by any order of the county court of said St. Louis county, nor a plat made thereof and filed with the clerk of said court, nor had said roads, or either of them, been used as public highways by the traveling public for a period of ten consecutive years next prior to the filing of said petition, nor had' there been any public money or labor expended upon said streets or either of them for said period of ten years. The petition also stated that said Gavin (meaning the relator herein) denied that said streets had ever been accepted by the said county court as a public road, and that
The answer of relator filed therein pleaded substantially the same facts respecting said streets that are charged in the petition in that regard. The answer also contained a plea challenging the jurisdiction of the circuit court of the city of St. Louis over the subject-matter of that suit, for the reason that it involved or affected title to real estate located in a different county from that in which said court was situated.
There is no question hut what the relator, the defendant in that case, claimed title to the land' mentioned to the center of said streets. The basis of his claim was that the subdivision mentioned had not been properly platted and filed with the clerk of the county court; that said court had never accepted said streets or done any work upon them; and that they had been abandoned as such by the public by non-user for a period of ten years. In fact, the petition in that case not only conceded relator claimed title to said land to' the center of said streets, but it, in express terms, charged that to be the fact; hut respondents now try to escape the effects of that concession hv insisting that said suit was an equitable proceeding which acts in personam, and for that reason could be brought and maintained in the county wherein relator resided.
Ordinarily that is true, which is shown by the following well-considered cases: State ex rel. v. Dearing, 180 Mo. 63; State ex rel. v. Zachritz, 166 Mo. 313; Olney v. Eaton, 66 Mo. 563; Castleman v. Castleman, 184 Mo. 438; Hewitt v. Price, 204 Mo. 31.
But an exception is made to that rule by statute. Section 564, Revised Statutes 1899', provides that “ suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situate.”
In discussing this same question, this court in the case of Castleman v. Castleman, 184 Mo. l. c. 438, said: “At the threshold of the case is raised a question of jurisdiction. Plaintiff resides in Cooper county, the land affected by the deeds in question is in that county, the suit was instituted there, the summons issued to the city of St. Louis, where defendant resides, and was served on him there. Defendant moved the court to dismiss the suit on the ground that the circuit court of Cooper county had no jurisdiction. The motion was overruled and exceptions taken. The position of appellant on this point is that this is a personal suit and could be brought only in the county of his residence or ‘where the plaintiff resides and the defendant may be found.’ Appellant is correct in his general proposition that a court of equity acts in personam. And since the suit is personal in its character it must seek the person to be affected in the county of his residence regardless of where the thing in controversy may be. [State ex rel. v. Zachritz, 166 Mo. 313.] But our statute (Sec. 564, R. S. 189'9') has engrafted one exception to that rule. It is said: ‘Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situate.’ Title to real estate is directly affected in this suit. By the decree appealed from the appellant is divested of title and the plaintiff invested with the same. [Keyte v. Plemmons, 28 Mo. 104; Ensworth v. Holly, 33 Mo. 370; Railroad v. Mahoney, 42 Mo. 467.] ”
To the same effect are Baker v. Squire, 143 Mo. 92, and Peters v. Worth, 164 Mo. 431.
It is also disclosed by this record that the streets mentioned in the petition filed in said suit had been abandoned for a period of more than ten years nest before its finding, and that the county court had expended no money or labor upon them during said period.
Under that state of facts it might well be argued that sections 9472 and 9694, Revised Statutes 1899, vested the title to one-half of said streets adjoining said lots in relator. [Sikes v. Railroad, 127 Mo. App. 325; l. c. 335-6; State v. Macy, 72 Mo. App. 427.]
If it is true, as contended for by relator, that he owns the land to the center of said streets, by virtue of the fact, if it be a fact, that the streets were never properly dedicated, or because it reverted to him, by virtue of abandonment and non-user, then, clearly, the decree rendered by the circuit court of the city of St.
We are, therefore, clearly of the opinion that the circuit court of the city of St.-Louis had no jurisdiction over the subject-matter of said suit filed therein by respondents against relator, nor had it any authority to try and adjudicate the matters and things involved therein.
n. There are several other questions presented and argued by counsel for respondents, but as they go to the merits of the case, they cannot now be considered, for the reason that the circuit court of the city of St. Louis had no jurisdiction to try the cause.
For the reasons before stated, the preliminary rule heretofore issued is made permanent, and a writ of prohibition is ordered to be issued, as prayed.
