Bernecker v. Miller

• Decision Date: 31 March 1867
• Parties: JOHN L. BERNECKER, Respondent, v. WENDELIN MILLER and MARTIN MILLER, Appellants.
• Court: Missouri Supreme Court

40 Mo. 473

JOHN L. BERNECKER, Respondent,

v.WENDELIN MILLER and MARTIN MILLER, Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

The court gave the following instruction for the plaintiff, which was excepted to:

“If the jury believe from the evidence that the plaintiff by his servant was in possession of the premises, and the defendants, by threats, words or actions calculated to excite fear and apprehension of danger, entered upon the premises in question, or any part thereof, and turned the complainant or his servant out, then the defendants are guilty of forcible entry and detainer.”

The defendants asked the following instruction, which was refused and excepted to:

“On the evidence, the plaintiff cannot recover against Martin Miller.”

The following instruction was given for defendants:

“Unless the plaintiff shows by proof an actual possession in himself, or by his servant or agent, prior to the filing of this writ, he cannot recover.”

On its own motion, the court gave the following instruction

“Unless the defendant Martin Miller, at the time the sheriff executed the writ of possession, was in possession of part of the premises (if he was in such part possession) as the servant or agent of the defendant Wendelin, the jury cannot find a verdict against Martin.”

The verdict of the jury was against the defendants.

P. C. Morehead, for appellants.

R. S. McDonald, for respondent.HOLMES, Judge, delivered the opinion of the court.

This was an action of forcible entry and detainer. It appears that the defendants had been in possession of the premises together as heirs and tenants in common; that Wendelin Miller (who held by right of his wife) had taken a lease from the plaintiff, who was not in any actual possession of the premises at the time, which included these premises (as Wendelin says, by mistake in the description, of which he knew nothing, not being able to read English); and at the expiration of this lease the plaintiff sued him and obtained a writ of possession against him, which was executed by the sheriff by putting out Wendelin and his family, leaving Martin Miller in possession as before. There was nothing to show that either one of these tenants in common had the exclusive possession more than the other. After being put out, Wendelin and his family returned into the house, where Martin still remained.

This action is brought against both Wendelin and Martin, and is founded upon the idea that the...