Blair v. Hamilton

• Citation: 292 S.W.2d 578
• Decision Date: 25 July 1956
• Docket Number: No. 2,No. 44443,44443,2
• Parties: Luther BLAIR and Marie Blair, Appellants, v. R. K. HAMILTON, John Morris, Roy Temple and Kenneth Dillon, Respondents
• Court: United States State Supreme Court of Missouri

Page 578

292 S.W.2d 578

Luther BLAIR and Marie Blair, Appellants, v. R. K. HAMILTON, John Morris, Roy Temple and Kenneth Dillon Respondents.

No. 44443.

Supreme Court of Missouri, Division No. 2.

July 25, 1956.

White & White and Roy V. Selleck, Rolla, for appellants.

Walker, Daniel, Clampett & Ritterhouse, Springfield, for respondent John Morris.

Breuer & Northern, Rolla, for respondents R. K. Hamilton and Roy Temple.

C. W. Terry, Camdenton, for respondent Kenneth Dillon.

EAGER, Presiding Judge.

This case is written on reassignment. Since we have determined that this court has no jurisdiction of the appeal, an extensive review of the facts will not be necessary. Appellants will be referred to as plaintiff's, and respondents as defendants. Plaintiffs, as owners, had leased a filling station and an adjacent building on Highway 66 in Pulaski County to defendant Hamilton for a term of one year beginning on August 9, 1950, at $300 per month, with a yearly renewal option for a period of ten years. The other defendants were supposedly subtenants. The present suit is one in unlawful detainer, instituted and tried in the Magistrate Court of Pulaski County; after appeal to the Circuit Court, the cause was transferred to Camden County on change of venue, and was tried there. The theory on which the case was tried and submitted (though somewhat more restricted than the complaint) was that the lease had been forfeited under the terms of Section 441.020 RSMo 1949, V.A.M.S., and that forfeiture had been declared and possession demanded, because the defendants had suffered a gambling device to be 'set up or kept or used in a house or building' on the leased premises. Plaintiffs sought to recover an increased rental for the period of the alleged detention, with damages of $3,750 for waste because of alterations made in and alleged injury to a building on the premises. The jury returned a verdict on April 23, 1954, awarding plaintiffs restitution of the premises, rentals of $300 per month for the period of detention, beginning with February, 1953 and until the premises were restored to plaintiffs, and no damages for 'waste and injury to the premises.' Judgment was entered accordingly on April 23, 1954, with the rental awarded being doubled, namely, to $600 per month, by virtue of the statute, Section 534.330 RSMo 1949, V.A.M.S. Plaintiffs filed no after-trial motion. Three defendants filed a motion for judgment (all four having moved for a directed verdict at the close of the evidence) and in the alternative for a new trial. The other defendant filed a motion for new trial, but, by order, was permitted to join in the motion of the other three defendants. On May 15, 1954, the court sustained the joint motion for judgment, set aside the previous judgment, and entered judgment for all defendants on the ground that the plaintiffs had failed to prove the allegations on which the claimed forfeiture was based, and, therefore, that the court had erred in failing to sustain defendants' motion for a directed verdict. This judgment permitted the plaintiffs to collect the original rental under the lease, which had, in the meantime, been refused. In the altermative, the court sustained the motion for new trial for the erroneous admission of evidence. Plaintiffs appealed from this latter judgment on May 24, 1954.

It is the duty of this court to examine the record to determine its jurisdiction though the question be not raised by the parties. Blake v. Shower, 356 Mo. 618, 202 S.W.2d 895; Fanchon & Marco Enterprises v. Dysart, Mo., 189 S.W.2d 291. We have done so here, and are convinced that this court has no jurisdiction. Counsel for plaintiffs state that the verdict of the jury and the original judgment of the court 'was in excess of $7,500.' It is true that the aggregate amount of the original judgment, including the doubled rents, exceeded $7,500 and would have aggregated approximately $9,320 to the date of the judgment. Plaintiffs accepted this judgment and filed no after-trial motion in view of this, we need not...