Bircher v. Parker

• Decision Date: 31 March 1869
• Citation: 43 Mo. 443
• Parties: RUDOLPH BIRCHER, Appellant, v. THEOPHILUS PARKER, Respondent.
• Court: Missouri Supreme Court

43 Mo. 443

RUDOLPH BIRCHER, Appellant,

v.THEOPHILUS PARKER, Respondent.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Respondent was tenant under appellant of a lot and building situated on the west side of Fifth street, between Olive and Locust streets, in the city of St. Louis.

The written lease, under which the respondent held, was made by King and Bigelow (who were then the owners of the property), and bears date January 2, 1861, and was for the term of one year from February 1, 1861. The respondent held over by consent of the lessors; and in April, 1864, the lessors, by deed, conveyed the premises to the appellant, and assigned their lease to him; and the respondent afterward continued in possession, and paid rent under said lease to the appellant until he terminated the lease, on the 1st day of February, 1865.

After the making of the lease, the respondent, in 1861 and 1862, for the more beneficial enjoyment of the premises, made certain erections and additions to the house.

Appellant, understanding that respondent had threatened that he would tear down and remove the erections and improvements he had made, and was about to remove the same, filed his petition in this case, alleging that his tenant was about to commit serious and irreparable waste, etc., and obtained an injunction restraining him from committing the same.

The petition was filed and injunction granted December 19, 1864. On March 20, 1866, the case was tried in the Circuit Court. The court found the issues for the defendant, and the injunction was dissolved. The court assessed the respondent's damages at $1,500, and gave judgment against the appellant for that sum. On appeal from this judgment for damages to the Supreme Court, the judgment was reversed and the cause remanded. (40 Mo. 118.) The second trial of this case was held at the February term, 1868; at which trial, among other things, the respondent offered in proof of his damages a deed made by the appellant to Amaziah Jones, dated March 26, 1866, by which deed the appellant sold and conveyed the lot to said Jones for the consideration of $69,000. The trial resulted in judgment for damages as before, and the case again comes here on appeal.

Krum, Decker & Krum, for appellant.

I. The deed of appellant to Jones should have been excluded. Upon what principle was it admitted? Was it to show a conversion of the fixtures or additions in question by the appellant? Was it to prove the value of this property? Was it to show that the value of these additions formed a part of the consideration expressed in the deed? No theory of the law can be suggested that will justify the admission of the deed in evidence. By his deed the appellant purports to sell the lot of land therein described and whatever is appurtenant thereto. The deed passed nothing more to the grantee. If the deed was offered to show that the appellant sold and received the value of the additions in question, it must be upon the theory that the aditions were appurtenant to the land. If this is conceded, it follows as a logical result that the aditions did not belong to the respondent. The deed having been admitted, it is impossible now to say what weight the court below gave to it. The entire assessment of damages may rest upon it. The introduction of this deed cannot now be regarded as immaterial or unimportant. In any view that can be taken, there seems no escape from the error.

II. The damages assessed are excessive. No damage beyond the cost of the litigation should have been assessed against the appellant. The value of the materials of the additions in question should have been disregarded. If the respondent had the right to remove the materials, the evidence shows that he had ample time to do so after the injunction was dissolved and before their destruction by fire. The appeal taken by the appellant to the Supreme Court after the first trial of this case did not have the effect to reinstate the injunction nor to continue it in force. No answer was made in respect to the injunction except to dissolve it. The appeal did not rescind or suspend the order dissolving the injunction. This suit is a bill in equity to prevent waste and irreparable injury to the freehold of the plaintiff. It must be conceded that if the injunction had been dissolved at any time before the hearing and final decree, an appeal from the final decree would not have the effect to reinstate the injunction or continue it in force. (13 Johns. 139; 7 Johns. Ch. 295; 3 Paige Ch. 381.) An injunction after an order of dissolution is never revived by implication. An injunction is never revived or continued in force except by a special order of the court. Mr. Eden, in commenting on the decision of Lord Hardwicke in the case of Bagster v. Walker, says: “The doctrine thus clearly and satisfactorily established has been followed in all the modern cases, and no injunction which has once been dissolved can be revived without special motion.” (Eden Injunc., 1st Am. ed., pp. 91, 228; id. ch. 6, p. 82.) The order dissolving the injunction was no part of the decree upon the merits of the case. An injunction is but an incident, and may by order be retained or continued in force--may be dissolved and be revived at the pleasure of the chancellor. ( Id. 228.)

III. The appeal to the Supreme Court was from the final judgment in the case. Under our system appeals do not lie except from final judgments, or decrees on the merits, or decrees dismissing bills. Decrees in chancery are not in solido, like judgments at law. A final decree may embrace several subjects, and the party aggrieved may appeal from a part or the whole of a decree; e. g., as where a decree directs the execution of a deed, and also to make compensation in money, a party may submit to the former and appeal from the latter, and vice versa. In this case, at the former trial, the court first found the issues for defendant; then ordered the injunction to be dissolved; and then proceded to assess damages, and rendered judgment for damages against the appellant. What did the appellant appeal from? Not from the order dissolving the injunction; not from the finding of the issues. From either it was impossible to take an appeal. The order dismissing the plaintiff's petition might have been appealed from, but was not. It follows that the appellant appealed from the judgment rendered upon the assessment of damages by the court, and nothing more. There was nothing else to appeal from. It may be said that the statute concerning appeals (R. C. 1855, p. 1287) continued the injunction in force. The statute, it is apparent, does not have this effect; but on the contrary it furnishes a strong if not conclusive argument in support of our position. Respondent's counsel assume that the order dissolving the injunction, and the judgment for damages, are inseparable and make but one judgment, because the final hearing and the assessment of damages were on the same day, and that the order dissolving the injunction and the judgment for damages proceed in consecutive order in the entry made by the clerk of the action of the court. But this is mere assumption; it is unsound. Suppose the injunction had been dissolved, and respondent's damages assessed as provided by section 13, ch. 128, p. 1249, and judgment rendered in the assessment.? An appeal from such judgment would lie, of course, and the appellant need not wait the final hearing of the case. (R. C. 1855, ch. 128, § 12, p. 1287.) We insist, therefore, that the respondent was at liberty to remove his materials from the leasehold premises at any time after the injunction was dissolved. His failure to do so must entail the loss on himself. The case of Kennedy's Heirs v. Hammond, 16 Mo. 341, is relied on by respondent's counsel. That case is not in point, because it shows that the property was destroyed while the injunction was in force and before it was dissolved by the court.

Glover & Shepley, for respondent.

I. The appeal taken from the judgment of the Circuit Court in March, 1866, temporarily annulled the action of that court; of course reinstated the injunction, and the injunction remained so reinstated till the hearing in the Supreme Court, in April, 1867, for the purpose of appeal. The reversing order of the Supreme Court permanently annulled the judgment dissolving the injunction, and left it in full force when the cause was remanded to the Circuit Court. The question of dissolving the injunction, as such, need not cut any figure in the case. It is only to be considered as part of the final judgment appealed from. The final judgment was one dissolving the injunction and dismissing the bill. The judgment was a unit. It was appealed from as a unit. The appeal, being perfected, vacated the judgment which had been entered. (Paine v. Cowdin, 17 Pick. 142.) After the appeal was entered below, the judgment there ceased to exist. (Nichols v. Colville, 1 Tenn. 82.) The effect of the appeal was to render inoperative the judgment in the inferior court. (Bassett v. Daniels, 10 Ohio St. 618.) An appeal from a final decree opens up for investigation the whole merits of the cause which were involved in or connected with the subject matter of the decree. (Teaff v. Hewitt, 1 Ohio St. 511; Campbell v. Howard, 5 Mass. 375; Sever v. Sever, 8 Mass. 132; Danforth v. Carter & May, 4 Iowa, 241; Stone v. Spillman, 16 Texas, 432; Stalbird v. Beattie, 36 N. H. 456; Furber v. Yergin et al., 2 Sneed, 3; Clinton v. Phillips's Adm'r. 7 Mon. 119.) Now, on these rulings, we contend the judgment entered in this court--the final judgment, the judgment deciding the cause against Bircher and dissolving his injunction--was annulled, vacated, and done away with for the time by the appeal. Of course the injunction stood, the judgment of this court was afterward reversed, and the cause came into the Circuit Court for trial again. Whether the injunction was saved by Bircher's appeal...