Bays v. Lueth, 46753
| Decision Date | 13 April 1959 |
| Docket Number | No. 1,No. 46753,46753,1 |
| Citation | 323 S.W.2d 236 |
| Parties | Fred C. BAYS and Elsa E. Bays, Plaintiffs-Respondents, v. George LUETH, Defendant-Appellant |
| Court | Missouri Supreme Court |
Donald W. Johnson, Charles V. Garnett, Kansas City, for appellant.
Albert Copaken, Sylvia Copaken, Kansas City, for respondents.
Plaintiffs' petition contains two counts. The first is in equity to quiet and determine title to Lots 15 and 16, Block 4, in George W. Warder's Addition in Kansas City, Missouri. The second count is in ejectment to recover possession of the premises and for damages and the value of the monthly rents and profits. Both counts were tried to the court in one hearing and a judgment was entered cancelling the deed under which defendant claimed and quieting title to the described real estate in plaintiffs, subject to an equitable lien in defendant's favor for $949.96, being the amount of taxes paid with interest. Thereafter, plaintiffs tendered into court for the defendant's benefit the amount fixed by the court and the court ordered the lien discharged. Defendant has appealed.
It appears from the transcript, and respondents admit, that no request was ever made for a separate trial of the issues in this cause and no order for a separate trial of the respective counts was made by the court. Respondents say the transcript correctly discloses that 'all the issues in both counts were tried at the same time.' Respondents' also suggest that they understood that '* * * in view of all the testimony and of the specific findings requested, the judgment of the trial court, in filing to grant plaintiffs any specific amount for defendant's use of plaintiffs' land, had inferentially denied the prayer of plaintiffs' count two.'
Appellant says, 'the judgment entered by the court is not confined to the first count, in terms, and actually disposes of all issues except, possibly, the claim of plaintiff for damages for unlawful detention of the property; and as to that issue the award of a lien to defendant for taxes and penalties is wholly inconsistent with such a claim.' Appellant insists that 'the decree does in fact dispose of all issues.'
The record presented clearly indicates that the case was tried to the court on both counts of the petition. The judgment entered recites that 'the cause having been submitted to the court upon the pleadings, the evidence and the briefs, and the court thereafter having had the matter under advisement and now being fully advised in the premises, the court finds the issues in favor of the plaintiffs and against the defendant and hereby orders, adjudges and decrees * * *.' In the remaining portion of the judgment the court only determined the title to the described premises, fixed the amount of the equitable lien and taxed the costs against defendant. There is no disposition of count two, the count in ejectment. While the judgment recites the finding of the issues for plaintiffs and against the defendant there is no judgment for the recovery of possession of the premises, no assessment of the damages for withholding possession and no determination of the value of rents and profits. These issues remain undetermined. The evidence shows that the plaintiffs fixed the amount of their damages (on account of defendant having withheld the possession of the property from them) at $500 and the value of the monthly rents and profits at $25 per month.
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