Coles v. Foley

• Decision Date: 30 January 1883
• Citation: 13 Mo.App. 249
• Parties: EDWARD COLES, Respondent, v. CHARLES FOLEY, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 249

EDWARD COLES, Respondent,

v.CHARLES FOLEY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 30, 1883.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded with directions.W. C. MARSHALL, for the appellant: The circuit court erred in trying the case de novo. Its jurisdiction was limited to either affirming the judgment of the justice or dismissing the appeal.--Rev. Stats., sects. 1000, 2487, 2488; Feedler v. Schroeder, 59 Mo. 364. The damages claimed in the petition were laid at $100. The damages allowed by the court amounted to $210. This was error.-- Wright v. Jacobs, 61 Mo. 23; Feedler v. Schroeder, 59 Mo. 364; Moore v. Dixon, 50 Mo. 424; Rev. Stats., sect. 3683.

R. HIRZEL and JOHN O'GRADY, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was an action of unlawful detainer, brought against a tenant who is alleged to have unlawfully held over after the expiration of his lease. The statement of the plaintiff recites the lease, charges the unlawful holding over after its expiration, lays the value of the monthly rents and profits at $35, and claims damages in the sum of $100. The plaintiff had a judgment before the justice, and the defendant appealed to the circuit court. When the cause came on for trial before the circuit court, the defendant failed to prosecute his appeal, and did not answer when called. The plaintiff was present in court, and announced himself ready for trial, although he had not before entered an appearance in the cause. The court proceeded to try the cause de novo without a jury, and found that the complainant had sustained damages in the sum of $105, and that the value of the monthly rents and profits was $35. The court therefore proceeded to render judgment for the sum of $210, double the sum assessed by the court as the complainant's damages, and also a judgment for rents and profits at the rate of $70 per month, double the value of the monthly rents and profits so found by the court.

The defendant afterwards appeared and filed in due time motions for new trial and in arrest of judgment, and, in this manner, saved exceptions to the action of the court. The grounds on which we are asked to reverse the judgment are: 1. That the court had no power to try the cause de novo; that under the statute, its power was limited to affirming the judgment of the justice or dismissing the appeal. This involves the construction of several sections of the statute relating to the action of forcible entry and detainer. We are of opinion that this statute was designed to furnish a complete scheme or code of procedure with reference to this class of actions, and that its provisions are not necessarily to be construed in pari materia with the general provisions of the statute relating to practice, or with the provisions of the statute relating to practice in cases originating before justices of the peace.

The sections of the statute relating to forcible entry and detainer which bear upon the question before us, are as follows: “In all cases where the complainant shall have removed the cause, by certiorari or appeal, and shall not have filed a sufficient affidavit or recognizance, and shall fail to perfect the same according to the order of the court, or shall have failed to file any affidavit or recognizance within the time required by law, or shall not prosecute his suit or appeal, the same shall be dismissed.” Rev. Stats., sect. 2487.

“In case of such default, by a defendant suing out a certiorari, judgment may be rendered against him by default; or in case of appeal, if he be appellant, the judgment of the justice may be affirmed or the appeal dismissed.” Ibid., sect. 2488.

“When an appeal shall be dismissed, such dismissal shall be certified to the justice, who shall, thereupon, issue execution without delay.” Ibid., sect. 2489.

“In case of a judgment by default, a jury, or the court, if no jury be required, shall assess the monthly value of the premises, and the damages and judgment shall be rendered on the verdict accordingly.” Ibid., sect. 2490.

The meaning of these sections is not entirely clear. The “default” referred to in section 2488, is the default described in the preceding section 2487; but this default undoubtedly includes the default of not prosecuting his appeal where the appeal is taken by the defendant; and there is no doubt that in such a case, it is competent for the circuit court to dismiss the appeal, or to affirm the judgment. Feedler v. Schroeder, 59 Mo. 364. But it does not follow that the court is bound to...