Duncan research files of
"Reports of cases determined in the Supreme Court of the state of Missouri from 1837 to 1839" by Louis Houck, Consellor at law, Vol.V, pgs.273 to 275; spine title "Missouri Reports - Houck - Vol.4-5"; ("Missouri Reports") Vol.5, pgs.480 to 483 (California State Law Library, Sacramento, 1/2004)
DONALDSON v. ANDERSON and others; Supreme Court of Missouri, Second Judicial District; 5 Mo. 480; August, 1838, Decided.
(opinion) McGIRK, J. Anderson, Duncan and Sneed brought an action against Donaldson on an assigned note by petition and summons in the Circuit Court of Monroe county. It appears by the sheriff's return that the process of summons was served by leaving a copy of the same with the defendant's wife, fifteen days before the return day thereof, and that there was no personal service. An issue was made up for trial, and at the return term the cause was called for trial. The defendant objected to go to trial at that term, insisting that in such cases, where there was not personal service, the defendant had a right to a continuance, of course, without showing cause. The court, however, required the defendant to go to trial, unless he showed cause for a continuance, which he did not do. This is the matter of error alleged in the case. Mr. Wright, of counsel for the plaintiff in the court below, relies on the construction of the act of the Revised Code of 1835, p. 449. The question made in this case for the court arises out of the 3d and 4th sections of the statute. The act provides for the petition in debt and summons, and then in the latter part of the 3d section it is declared, "that a writ of summons or capias may be sued out, executed and returned in the same manner and with like effect as upon a declaration in the ordinary form." It seems to me that there can can be no difficulty in understanding the meaning of this part of the law, nor indeed does any seem to exist on the part of the counsel. The 4th section then provides, "that if the defendant shall have been personally served with the process, he shall plead to the merits of the action on or before the second day of the term at which he is bound to appear." Let it be remembered, the only thing as yet which saves him from pleading to the merits on or before the second day of the term is, that if there has not been personal service of the writ, then the statute does not command him to do so; but, on the contrary, if the same has been personal, then he is bound so to plead. But as to the time of pleading, the law-maker seems to have remembered that, though two days are given for that purpose in the cases where there has been personal service, yet what shall be done in cases where the business of the court does not require the court to remain in session two days? Shall the court be holden two days to give such defendant two whole days or not? The law-maker answers the question by declaring, "if the term does not last two days, then the defendant shall be subject to such rule as to when he shall plead as the court shall direct." This is, in my view, all the statute has accomplished, by the third section, so far. Then the section proceeds with a new idea, that is, to declare when the suit so pleaded to shall be tried. The balance of the section, therefore, proceeds to declare that the suit in such cases shall be determined at the same term, unless continued for good cause. The question is made, what is meant by the words, "and the suit in such cases shall be tried at the same term, unless," &c.? What suits in such cases are meant? To find out what sort of suit is to be tried, we must look at the cases to which we are referred. The words, "such cases," here refers to conditions of suits. The first condition we find a suit in, when we stand at the latter end of the section and look back, is the case where the court is about to adjourn before the end of two days, and the defendant has, in consequence of such anticipated adjournment, been ruled to plead before the end of two days, and he has done so; this being done, his suit is ripe for trial at the term. The trial, in this case, can, nevertheless, only be had if the farther circumstance exists that there has been personal service. This is one case. Another is, where the defendant has been served with personal service, and he has, without any rule or order of the court, had two days to plead in, and he has so pleaded, then his cause is ripe to be tried at the same term. This condition of the cause forms another case, and in my opinion satisfies the reference made by the words, "the suit in such cases shall be tried at the return term." But Mr. Wright, of counsel for plaintiff in the court below, wishes to grasp another character of cause within the class to be tried the first term. He thinks "such" refers to all in the act mentioned; and there is only one other, which is, that character of cause where there has not been personal notice, which is the case of the defendant in the court below. The third section has said, when there is a summons, the effect of a service shall be precisely the same as if such service had been made in an ordinary case. Now what is the effect of a service of a writ by the sheriff in an ordinary case? The effect of service, whether personal or constructive, is alike; the defendant is bound to plead within six days after the return day; and the further effect is, that when he does so plead, he is entitled to have his cause continued, without cause being shown, to the next court. But in the fourth section, the Legislature clearly intended to distinguish between the cases of personal and constructive service; in the first, the trial is to be had at the return term; in the second case, the trial is not so to be had. I therefore must say, the Circuit Court erred in compelling the defendant to go to trial. a Judgment reversed and remanded, the other Judges concurring herein.
(MAD: from the Missouri Supreme Court Historical Database http://www.sos.state.mo.us/archives/judiciary/supremecourt/
Supreme Court Case Files; Contributor Appellant James M. Donaldson, Respondent James Anderson, Respondent Coleman Duncan, Respondent John Snead, filed 1838, Monroe Co., 4th District, Civil proceeding, only the one page precipe for Writ of Error; Identifier Old Box Number 516, Location 16A/4/6, Box 69, Folder 14; Courtesy of the Missouri State Archives.
Supreme Court Case Files; Contributor Appellant James Donaldson, Respondent James Anderson, Respondent Coleman Duncan, Respondent John Snead, filed 1838, Monroe Co., 4th Circuit, 2nd District, Civil proceeding, debt, reversed Circuit denial of continuance, papers served to wife, court found no personal service of summons was "constructive"; Identifier Old Box Number 515, Old Folder Number 24, Location 16A/5/1, Box 101, Folder 11; Courtesy of the Missouri State Archives.)
"Reports of cases determined in the Supreme Court of the state of Missouri from 1840 to 1842" by Louis Houck, Consellor at law, Vol.VII, pgs.74 to 75; spine title "Missouri Reports - Houck - Vol.6-7"; ("Missouri Reports") Vol.7, pgs.138 to 142 (California State Law Library, Sacramento, 1/2004)
DAMERON v. WILLIAMS, Trustee of Arnold; Supreme Court of Missouri, First Judicial District; 7 Mo. 138; August, 1841, Decided.
COUNSEL: Todd, for Plaintiff. 1st. The court erred in admitting Duncan, the grantor in the deed, to testify; he was interested in increasing the remaining funds after paying Arnold's debt, which were to revert to himself. 2nd. The deed of trust was void in law, and gave no title to Williams, the plaintiff: first, because it was covenanted, and the property did remain in the grantor's possession after executing the deed. 3rd. The deed was fraudulent and void, in fact, because the grantor used the property as his own, and traded upon and sold the estate with the grantee's knowledge. 4th. The verdict should have been for the defendant, as no act of trespass was proven to have been committed by defendant. Trespass will not lie for the assent in receiving money made by a levy illegally made by an officer. Second, No actual possession was in plaintiff, which is necessary to sustain the action, or a general right of property. 5th. The plaintiff cannot now object to the defendant not having proven himself a judgment creditor, to resist the deed as fraudulent; for, first, the plaintiff's declaration alleges the fact; second, the plaintiff proved the fact; third, the plaintiff made no exception in the court below to the defendant's right to prove the deed fraudulent.
(opinion) TOMPKINS, J. Williams brought his action of trespass against Dameron, and had a judgment against him, to reverse which Dameron prosecutes this writ of error. The declaration is in these terms, viz: "For that the said Joseph Dameron on, &c., at, &c., with force and arms, he the said Joseph Dameron being the plaintiff in two executions then and there in the hands of the acting constable of Marion township, in said county of Monroe, which said executions were against one David Duncan, and then and there directed James Porter, the said Porter then and there being the acting constable of Marion township aforesaid, to levy on two horses, three cows, &c., of the goods and chattels of the said plaintiff, to satisfy two certain executions in the hands of said Porter, at that time as constable as aforesaid, in favor of said Dameron, and against one David Duncan; and the plaintiff avers that the said constable, in pursuance of the direction of the said defendant, Dameron, did levy on and seize the said property of the said plaintiff, and kept and detained the said property from the said plaintiff for a long space of time, &c., and then and there carried away the same to the use of the said defendant," &c. To this declaration Dameron pleads not guilty, and issue was joined.
The evidence is, that David Duncan, the person mentioned in the declaration, had by deed conveyed to Williams, the plaintiff in this suit, the property charged in the declaration to have been taken and sold by the constable. This property was conveyed to Williams in trust for one William Arnold, to secure to Arnold the payment of a sum of money due by bond from Duncan to Arnold; and of which property the residue was to be returned to Duncan, after the debt, &c., was paid to Arnold. Duncan was admitted as a witness to prove that the property taken and sold by the constable was the same which he by his deed had conveyed to Williams, the plaintiff, for the purpose of raising money for the use of Arnold as aforesaid, the sale by the constable, &c. There was no evidence that Dameron, the defendant, was present aiding and assisting the constable in taking this property into his possession, under the authority of the executions in which he was plaintiff. No evidence was offered to connect Dameron with the constable in the taking and carrying away the property. It was not in evidence that he was even present looking on. The defendants made their objections to the admission of Duncan as a witness, and excepted to the opinion of the court in that behalf. The defendants moved in arrest of judgment, and for a new trial, assigning for reason, among other things, that the finding of the court, acting as a jury, was against law and evidence. It is assigned for error, 1st, that the court committed error in refusing a new trial; 2nd, in admitting the evidence of Duncan.
The declaration is in form a declaration in trespass vi et armis; all the matter set out in it is such as would entitle a plaintiff to an action for consequential damages only. If Williams, in his fiduciary character, sustained any injury by the taking and selling of this property, it was in consequence of the direction or advice of Dameron to the constable, and not in consequence of any act of Dameron himself: and had the constable, acting under the authority of Dameron's execution, sold the same property, without having had any communication with Dameron, plaintiff in the execution, he, Williams, might, notwithstanding, have maintained his action on the case against Dameron; for the constable sold the property for the benefit of Dameron, and at his implied request.
The constable, but for the trial of the right of property testified to in the evidence preserved, would have himself been liable to be sued in trespass. It may be asked, if the facts from which the injury results are set out, what does it signify, whether the form of the action be trespass vi et armis, or trespass on the case. If an action of trespass on the case had been brought, the defendant might have given in evidence, under the general issue, anything that would justify him in taking and selling the property; while in an action for a trespass vi et armis he is, under that issue, restricted to a denial of having taken the property. In an action of trespass vi et armis, it should have been charged that Dameron took the property himself; and such an allegation would have been supported by proof that he, in company with the constable, took it, &c.
The court committed error, also, in admitting Duncan to testify. The interest of Duncan was not, as is contended, equally balanced. True it is, the property taken from this fund goes to satisfy another debt. But he had a residuary interest in the fund conveyed to the plaintiff, Williams, for the use of Arnold. This fund he would keep in his possession longer than other property not therein included. Because then the action was ill conceived; nothing set out in the declaration going to show a trespass, and no evidence of a trespass has been given, and moreover, because the court permitted Duncan, the maker of the deed, to be made a witness for the plaintiff in this suit, its judgment is reversed.
The defendants contended that because the plaintiff had himself introduced the executions of Dameron in evidence, it appears that they were judgment creditors, and therefore they had a right, even under this issue, to contest the validity of the deed of Duncan to Williams. An execution I understand to be an authority to the officer, who by it is commanded to execute and sell property. But if the plaintiff in the execution wishes to show himself a judgment creditor he must produce the whole transcript of the justice's docket that it may appear not only that there was an execution, but a judgment to warrant the execution, and other previous proceedings to warrant the judgment.
"Reports of cases determined in the Supreme Court of the state of Missouri" by Horatio M. Jones, Reporter; ("Missouri Reports") Vol.26, pgs.72 to 75 (California State Law Library, Sacramento, 1/2004)
STALCUP, Plaintiff in Error, v. GARNER, Defendant in Error; Supreme Court of Missouri, St. Louis, 26 Mo. 72; October, 1857, Decided.
Error to Monroe Circuit Court.
This was a suit instituted by John Stalcup against William Garner, John M. Garner and others. The petition sets forth substantially that William Garner, being seized of the S.E. 1/4 of the N.W. 1/4 and the W. 1/2 of the S.W. 1/4 of section 32, in township 56, &c., conveyed the same to one Duncan in trust for his (Garner's) children, of whom John M. Garner was one; that the deed by mistake misdescribed the said tracts intended to be conveyed, locating them in section 35 -- in which the said Wm. Garner owned no land -- and not in section 32; that said John M. Garner, being of age, conveyed to the plaintiff, Stalcup, his undivided interest in said tracts, but by mistake the description contained in the deed failed to embrace a portion of the land intended to be conveyed; that Duncan abandoned the trust, &c. The petition prayed a reformation of both deeds, and a decree of title in plaintiff.
A demurrer to this petition was sustained.
COUNSEL: Carr, for plaintiff in error. John M. Garner could have instituted a suit previous to his conveyance to plaintiff for the correction of the mistake in the deed of Wm. Garner. By the conveyance of John M. Garner this right passed to plaintiff. The petition is not multifarious.
RICHARDSON, JUDGE, delivered the opinion of the court. In many cases the transactions mentioned in a bill are so interwoven, and the settlement of one is so dependent on the closing or adjustment of another, that justice can not be administered without uniting in one suit all the parties interested in the principal matter of controversy; and as was observed in (MAD: citations ommitted here), it is impracticable to lay down any general rule as to what constitutes multifariousness as an abstract proposition, but each case must be determined by its own circumstances. There are however, in equity pleading, certain general rules which are well defined, though sometimes it may be difficult to apply them on account of the intricacy of the facts.
There are two kinds of multifariousness; first, where several distinct claims against the same defendant are combined in one suit, which is called a misjoinder of claims; secondly, "where different matters, having no connection with each other, are joined in a bill against several defendants, a part of whom have no interest in or connection with some of the distinct matters for which the suit is brought; so that such defendants are put to the unnecessary trouble and expense of answering and litigating matters, stated in the bill, in which they are not interested and with which they have no connection."
The rules of pleading either in proceedings in equity or in actions at law do not now, as such, prevail in this state, but they serve to illustrate the proper construction of the present code; and it is worthy of observation that the legislature, in presenting the new system of practice, has justly regarded many of the provisions of the old, and has incorporated many of its rules, which are founded on principle, into the new code. It is not now an objection that several causes of action against the same defendant are united in one suit, provided they are of the character indicated in section 2, article 6, of the practice act of 1855; but the causes so united "must be separately stated," and they "must affect all the parties to the action." And it has been decided in New York, under a statute in the words of ours, that causes of action, to be joined, must be in favor of all the plaintiffs and against all the defendants.
The fifth subdivision of the sixth section, which prescribes the cases in which a defendant may demur, assigns as a ground "that several causes of action have been improperly united;" and, whether the scope of this cause of demurrer will extend to the objection of not separately stating causes of action that may be united in one complaint if properly stated, it is manifest that it was intended to reach a petition which contains causes of action not embraced in the classification enumerated in the second section, or that includes defendants who may be interested in some of the causes of action, but not in all.
If a plaintiff has several demands against one defendant, arising for example on accounts and notes, he may include them all in one suit, but they must be stated separately in different counts. But suppose A. has a note against B. and also against B. and C., he can not declare on both notes in the same suit if he makes C. a party, because the latter is not required to stand in court and suffer the delay, inconvenience or expense of the litigation touching the note with which he has no concern.
This petition contains two causes of action; first, the mistake sought to be corrected in the description of the deed from William Garner to Duncan in trust for his children; and, secondly, the mistake in the deed from John M. Garner to the plaintiff. If the two were not blended but were separately stated as the law requires, it would be very apparent that, although all the defendants were properly joined as to the first count, none of them but John M. Garner had any interest in or connection with the cause of action in the second. The mistake in the second deed has no connection with the mistake in the first, and did not in any way conduce to it; and the mistake in the second deed did not even occur in following the misdescription in the first; for it locates the land in the right section, township and range, and the error is in a matter not common to both deeds. Assuming that there was a mistake in the first deed, what interest had the other defendants in the controversy between the plaintiff and John M. Garner growing out of the mistake in the second deed? It was competent for John M. Garner to correct the mistake in the conveyance he had made by voluntarily executing another deed, which would have operated to substitute the plaintiffs in his right to demand by suit against the other defendants the correction of the mistake in the deed of William Garner; but he did not do so, and, because it became necessary for the plaintiff to sue him, there was no propriety in joining the other defendants who had no interest in that controversy. John M. Garner may have no defence, or he may deny that there was any mistake, or insist that it has been corrected, or that the contract has been rescinded; and whilst this litigation is pending there can be no reason for compelling the other defendants to wait in court for the trial of a question, in which they have an interest, until a question is settled in which they have no interest.
The petition is multifarious, and this objection can be taken under the code, and is embraced by the fifth clause of the sixth section of the practice act of 1855. The judgment is affirmed, the other judges concurring.
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