Bristol v. Thompson

• Decision Date: 29 May 1907
• Citation: 102 S.W. 991,204 Mo. 366
• Parties: BRISTOL v. THOMPSON.
• Court: Missouri Supreme Court

102 S.W. 991

204 Mo. 366

BRISTOL v. THOMPSON.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

COURTS — SUPREME COURT — JURISDICTION — EJECTMENT SUIT.

An action by an unsuccessful defendant in an ejectment suit, under Rev. St. 1899, § 3072 [Ann. St. 1906, p. 1766], to recover the value of improvements made by him upon the land, is an action for a money judgment only, and not such a continuation of the ejectment suit as to give the Supreme Court jurisdiction for that reason.

Appeal from Circuit Court, Douglas County; George W. Thornsberry, Judge.

Action by E. A. Bristol against Mrs. L. Thompson. From a judgment for plaintiff, defendant appeals to the St. Louis Court of Appeals, which transferred the case to the Supreme Court. Case transferred to St. Louis Court of Appeals.

J. S. Clarke, for appellant. John T. Davis and S. P. Smith, for respondent.

GRAVES, J.

Plaintiff herein was an unsuccessful defendant in an ejectment suit. At the March term, 1902, of Douglas county circuit court, defendant secured judgment in ejectment against plaintiff for the possession of 80 acres of land in Douglas county. On March 28, 1902, plaintiff instituted this suit under section 3072, Rev. St. 1899 [Ann. St. 1906, p. 1766], to recover value of improvements. The pleadings are not abstracted or before us. The fact is that there is nothing before us except a bill of exceptions, which is marked in pencil "Original," and has the file mark of the circuit clerk of Douglas county, and a purported abstract of record, which does not set out the pleadings in substance or otherwise. In this purported abstract of record we have the following set out as the judgment in the case, viz.: "Now at this day this cause coming on for trial, and the plaintiff appearing in person and by attorney, and the defendant appears by attorney, and each announce ready for trial, and the court sitting as a jury after hearing the evidence both for plaintiff and defendant, and the argument of the counsel, finds the issues for the plaintiff. It is therefore considered, ordered, and adjudged by the court that the plaintiff have and recover of and from the defendant herein the sum of $200 together with his costs in this suit expended and that execution issue therefore." The cause was appealed to the St. Louis Court of Appeals, and by that court transferred to this court by a short opinion in these words: "The plaintiff, who was an unsuccessful defendant in an ejectment suit, proceeded under section 3072, Rev. St. 1899 [Ann. St. 1906, p. 1766], to recover the value of improvements made by him upon the land. He recovered in the circuit court, and defendant appealed to this court.

In Stump v. Hornback, 109 Mo., loc. cit. 279, 18 S. W. 37, it is said: "The proceedings to recover for improvements were designated merely to supplement and continue the ejectment suit out of which they grew, and enforce the equities of the occupant before the judgment in the original suit had been executed. This court has no jurisdiction in an ejectment suit. This proceeding being a continuation of the ejectment suit, it must follow that this court has no jurisdiction over the subject-matter of this suit. The appeal is therefore transferred to the Supreme Court."

It will be observed that the Court of Appeals acted upon a remark of Judge Macfarlane in the Stump Case in sending the case here. The judgment in the case at bar clearly does not involve title to land. It is purely and simply a money judgment. Nor is this action a continuation of the ejectment suit, as stated by Judge Macfarlane in the Stump Case, supra. This language was not called for in that case, and is at most mere dicta. In Henderson et al. v. Langley, 76 Mo., loc. cit. 228, Hough, J., said: "The claim for improvements made under the sections cited cannot be presented or heard in the action of ejectment. It is intended to be an independent proceeding, and can only be instituted after final judgment of dispossession shall have been rendered against the defendant in the suit of ejectment." More recently the Henderson Case has been cited and approved by Fox, J., in case of Tice v. Fleming, 173 Mo., loc. cit. 56, 72 S. W. 689, 96 Am. St. Rep. 479, where we find this statement of the law: "In case the defendant's possession and occupancy is by claim of title through the plaintiff, then the value of the improvements may be considered in the ejectment suit; but if defendant's occupancy is under a stranger to the title of plaintiff, then his action for improvements must be an independent one, under the statute. Henderson v. Langley, 76 Mo. 228." The Henderson Case upon this point is likewise...