Davis v. Gerson

• Court: Missouri Supreme Court
• Writing for the Court: Bohling
• Citation: Davis v. Gerson, 203 S.W.2d 724 (Mo. 1947)
• Decision Date: 14 July 1947
• Docket Number: No. 40219.,40219.
• Parties: DAVIS v. GERSON.

203 S.W.2d 724

DAVIS v. GERSON.

No. 40219.

Supreme Court of Missouri, Division No. 2.

July 14, 1947.

Appeal from Circuit Court, Jackson County; Paul Buzard, Judge.

Unlawful detainer action by Nola Davis against Harry Gerson to recover possession of realty. The cause was commenced in a justice of the peace court and, at the instance of defendant, transferred to the circuit court on writ of certiorari. From a judgment for plaintiff, the defendant appeals. The judgment was reversed and cause remanded, and case certified and transferred to Supreme Court by Kansas City Court of Appeals in 197 S.W.2d 727.

Judgment reversed and cause remanded.

Marion D. Waltner and Clarence C. Chilcott, both of Kansas City, for appellant.

Walter R. Barnes, of Kansas City, for respondent.

BOHLING, Commissioner.

Unlawful detainer; certified here by the Kansas City Court of Appeals (197 S.W. 2d 727) on the ground its ruling that it was essential for the complaint to contain an allegation that the premises were within the township of the justice of the peace to vest jurisdiction, R.S.1939, Sec. 2760, Mo. R.S.A., was in conflict with the holding of the St. Louis Court of Appeals in Young Women's Christian Ass'n v. LaPresto, Mo. App., 169 S.W.2d 78, 79 [2, 4]. The latter case was also certified here on the ground of conflict with an earlier opinion of the Kansas City Court of Appeals in State ex rel. Brown v. Bird, 228 Mo.App. 800, 806 (3, 4), 73 S.W.2d 821, 824, 825, applying now R.S.1939, Secs. 2760, 2761, Mo.R.S.A., which the Kansas City Court of Appeals followed in the instant case. Our records show that Young Women's Christian Ass'n v. LaPresto was reversed and remanded on stipulation and without opinion by this court; the parties stipulating that the judgment of the circuit court should in all respects be sustained except that the damages awarded for the unlawful detention should be reduced from $500 to $100.

The court, upon trial without a jury, found plaintiff's damages to be $600 and the reasonable monthly rents and profits to be $75, and entered judgment against defendant for restitution and $1,200 damages and rents and profits at the rate of $150 a month from January 1, 1946, until restitution of the premises be made. The tenant appealed and the judgment was reversed and remanded.

Nola Davis filed an unlawful detainer action against Harry Gerson "before J. Frank Flynn, Justice of the peace, Kaw township, Kansas City, Missouri," seeking possession of "No 2303 Brooklyn in the city of Kansas City, Kaw township," Jackson county, Missouri, et cetera. The tenant removed this proceeding to the circuit court by certiorari on June 16, 1945, the same being cause No. 502,523 in the circuit court. Thereafter, on July 3, and on August 2, and on September 6 the landlord filed successive unlawful detainer actions against the tenant in the same court covering the same property, omitting, however, reference to the location of the premises in Kaw township. The tenant removed each proceeding by a separate writ of certiorari to the circuit court, said certiorari proceedings being numbered Nos. 503,283; 503,889 and 504,757, respectively.

When the parties appeared for trial, they agreed the four cases should be consolidated and tried under the low number, No. 502,523. The cases involved common questions of fact and of law, were pending before the same court, and were subject matter for consolidation. Our unlawful detainer statutes make specific provision for the adjustment of such controversies at one trial by providing for the assessment of all damages — waste, rents, and profits — "owing up to the time of the rendering of the verdict or finding of the justice" and the statement of "the monthly value of the rents and profits of said premises," R.S.1939, Sec. 2845, Mo.R.S.A., and a judgment for restitution and the recovery of double the damages and also double monthly rents and profits so found from "the day of rendering the verdict, or the finding, until restitution be made * * *" Id., Sec. 2850; Todd v. Fitzpatrick, Mo. App., 259 S.W. 490, and authorities cited. The consolidation in the instant case was not one wherein the litigants tried one of several actions under an agreement that the judgment in that action should be conclusive as to the others; or where several actions were tried together with the understanding each retained its separate character and required the entry of a separate judgment; but was an actual consolidation in the true sense in that the several causes of action were combined or merged into one and lost their separate identity and became a single action in which a single judgment would suffice. (Consult 1 C.J.S., Actions, § 107, page 1341; § 113a, (1), (5), pages 1371, 1375. In this view of the record the case was tried under pleadings alleging that the premises were in Kaw township, Jackson county,...