Stump v. Hornback
| Decision Date | 22 December 1891 |
| Citation | 18 S.W. 37,109 Mo. 272 |
| Parties | Stump et al. v. Hornback et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.
Reversed and remanded.
H. C Lackland and C. W. Wilson for appellants.
(1) The judgment of the circuit court is in direct violation of the opinion and mandate of the supreme court in this case. Stump v. Hornback, 94 Mo. 35. (2) The defendants are entitled to credit for the accrued rents and profits under their judgment in ejectment in the way of a set-off against the plaintiffs' claim for improvements. The court erred in refusing to allow the set-off. Stump v. Hornback, 94 Mo. 35; Davis v. Louk, 30 Wis. 308; Parsons v. Moses, 16 Iowa 440. (3) The judgment of the circuit court is in direct violation of section 20, of article 2, of the constitution of Missouri. It is a taking of private property for private purposes, without compensation, and against the consent of the owner. Const. 1875, art. 2, sec 20. (4) It is certainly a taking of private property for private purposes against the consent of the owner. The court has no right to do by indirection that which the constitution forbids to be done directly.
T. F McDearmon for respondents.
(1) The judgment of the circuit court was right. The said court did not err in refusing to allow the rents and profits (which, as appellants claim, had accrued after the judgment in the ejectment suit) as a set-off against the respondents' claim for the value of the improvements. This is the only question for determination in this appeal, the former adjudications of this court and the court of appeals having settled all others. The injunction destroyed entirely the force and effect of this judgment, for rents and profits accruing after the injunction was granted. R. S. 1889, secs. 4648, 4649, 4650, 4640, 4638, 4639; Stump v. Hornback, 94 Mo. 26; Lee v. Bowman, 55 Mo. 400; Russell v. DeFrance, 39 Mo. 506; Dothage v. Stewart, 35 Mo. 251; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152; Malone v. Stretch, 69 Mo. 25; Henderson v. Langley, 76 Mo. 226; McClannahan v. Smith, 76 Mo. 428; Jasper Co. v. Wadlow, 82 Mo. 172; Tissier v. Hill, 13 Mo.App. 36; McIntyre v. McIntyre, 24 Mo.App. 166; Chouteau v. Allen, 74 Mo. 56; Pomeroy v. Benton, 77 Mo. 64; State ex rel v. Givan, 75 Mo. 516; Connor v. Pope, 23 Mo.App. 344. (2) The third and fourth points made by the appellants, that the statute upon which this action is based is unconstitutional, has been finally disposed of by this court, and the St. Louis court of appeals. It is res adjudicata. Stump v. Hornback, 94 Mo. 26; Stump v. Hornback, 15 Mo.App. 367; McIntyre v. McIntyre, 24 Mo.App. 166; Chouteau v. Allen, 74 Mo. 56; Pomeroy v. Benton, 77 Mo. 64; State ex rel v. Givan, 75 Mo. 516; Conner v. Pope, 23 Mo.App. 344; Shroyer v. Nickell, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116. The constitutionality of this statute is res adjudicata. Stump v. Hornback, 94 Mo. 26; 15 Mo.App. 367; Grumley v. Webb, 48 Mo. 562; Overall v. Ellis, 38 Mo. 209; Bank v. Taylor, 62 Mo. 338; Adair Co. v. Ownby, 75 Mo. 282; Lackland v. Smith, 75 Mo. 307; McKinney v. Harral, 36 Mo.App. 338; Treadway v. Johnson, 39 Mo.App. 176.
This is a proceeding by plaintiffs, who were unsuccessful defendants in an ejectment suit, to recover the value of improvements made by them upon the land, for the possession of which a judgment was rendered against them in favor of these defendants.
In the ejectment suit judgment was rendered in favor of defendants in this suit, and against the plaintiffs, for the possession of the land, and for $ 411.30 damages "together with $ 20 per month from this date till possession of said premises be delivered to plaintiffs, and costs." This judgment was dated September 13, 1881.
Plaintiffs herein commenced this proceeding September 27, 1881, and on the same day the court granted a temporary injunction, prohibiting defendants herein from enforcing their judgment for possession, until this suit should be finally disposed of. The case was tried upon the petition and answer in September, 1882, and the value of the improvements assessed by the jury at $ 1,960, and the value of the land aside from the improvements at $ 1,462.05.
The court refused to allow the judgment recovered by defendants for damages and accrued rents, and profits in the ejectment suit to be set off against the value of the improvements so found, and entered a decree divesting defendants of their title and vesting it in the plaintiffs, on payment of the estimated value of the land, aside from the improvements, $ 1,462.05, into court for the benefit of defendant. From this judgment defendants appealed to the St. Louis court of appeals, where the judgment was affirmed, and defendants then appealed to this court, where the judgment was reversed and is reported in 94 Mo. 26.
After the case had been remanded to the circuit court of St. Charles county both parties filed motions to have the judgment entered, in accordance with the judgment of the supreme court. On the hearing of these motions it was admitted that the plaintiffs were, and since the rendition of the judgment in ejectment suit had continued, in the possession of the land; that plaintiffs on the twelfth of May, 1884, paid to defendants the judgment for $ 411.30 damages, but that no part of the rents and profits of the land accruing since the judgment had been paid. It was also agreed that the temporary injunction, granted at the commence-of the proceeding, had continued, and was then in force.
The court thereupon entered up a decree awarding to plaintiffs the value of the improvements, as assessed by the jury in September, 1882, to-wit, $ 1,960. The injunction was made perpetual unless this sum was paid by defendants, on or before December 1, 1888; in the event it was paid then the injunction to be dissolved. In this decree the court made the following finding: "And the court doth further find the defendants herein were not entitled to the possession of the land in controversy after the grant of the temporary injunction herein, and are not entitled to the possession thereof, and that, therefore, no monthly rents and profits have accrued to them thereon." From this judgment defendants appealed.
This court, when the case was before it on a former appeal (94 Mo. 26, 34), made the following order for the government of the circuit court, in finally determining the case: "And appellants (defendants), having neglected or refused to exercise their privilege of election to take the value of the land aside from the improvements, the injunction will be made perpetual and appellants forever enjoined from taking possession of said lands, under said judgment, or having execution thereof, unless, on or before a reasonable day to be fixed by said court in its decree, they pay the respondents, or into the court for their use, the value of the improvements as found by the verdict of the jury, against which amount, however, is to be set off, and deducted, so much of appellants' judgment for rents and profits, in the action of ejectment, as remains unsatisfied, the injunction to be dissolved on such payment."
When this cause was remanded by the circuit court with directions to enter a particular judgment, that court had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters had become res adjudicata, and could not be reopened. Hurck v. Erskine, 50 Mo. 116; Shroyer v. Nickell, 67 Mo. 589; Chouteau v. Allen, 74 Mo. 56; State ex rel. v. Givan, 75 Mo. 516.
No question then can be properly considered on this appeal except whether the judgment entered by the circuit court was in conformity to the mandate of this court. This depends upon whether there was a "judgment for rents and profits" in the ejectment suit which remained unsatisfied. It is conceded that the judgment for damages, which included all rents up to the date of its rendition, was fully paid. If, therefore, any unsatisfied judgment remained it grew out of the rents and profits which have accrued since the original judgment was rendered. That part of the judgment allowed, from its date, twenty dollars per month "till possession of said premises be delivered to plaintiffs." Did these accruing rents and profits constitute a part of the judgment?
The statute provides that if plaintiff prevails in the action he shall recover by way of damages the rents and profits down to the time of assessing the same. R. S. 1879, sec. 2252. The jury shall find the monthly value of the rents and profits. Sec. 2254. "In such case the judgment shall be for the recovery of the premises, the damages assessed and the accruing rents and profits at the rate found by the jury, from the time of rendering the verdict until possession of the premises is delivered to the plaintiff." Sec. 2255. It is very clear from the foregoing provisions of the statutes that the rents and profits, as they accrued, became as much a part of the judgment as accruing interest does as a part of an ordinary judgment, and are in like manner collectible on execution. Lee v. Bowman, 55 Mo. 400; Parsons v. Moses, 16 Iowa 440; Davis v. Louk, 30 Wis. 308.
Indeed we do not understand the circuit court as entertaining views contrary to these, but from the finding of that court, that defendants were not entitled to the possession of the lands after the grant of the temporary injunction, and that, "therefore, no monthly rents and profits have accrued to them thereupon," we infer that the court held the order granting a temporary injunction...
To continue reading
Request your trial