Doebbeling v. Quimby
| Decision Date | 07 November 1927 |
| Citation | 299 S.W. 629,221 Mo.App. 1178 |
| Parties | EDWARD N. DOEBBELING, APPELLANT, v. BENJ. G. QUIMBY, ET AL., RESPONDENTS. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Andrew County.--Hon. Guy B. Park Judge.
AFFIRMED.
Judgment affirmed.
Grover C. Sparks and Lester Vonderschmitt for appellant.
Lee Mullins for respondent.
Trimble, P. J., absent.
This is an action in replevin instituted November 11, 1919, wherein plaintiff claims to be the owner and entitled to possession of a crop of corn which, at the time the suit was brought, was unsevered from the land on which it stood. It appears the cause has been tried three times, first, in the Atchison county circuit court wherein there was a verdict for defendants. A new trial was granted and on change of venue the case was tried in Andrew county resulting in a verdict for plaintiff but afterwards, at the instance of defendants, this verdict was set aside. At the May term, 1927, of the Andrew county circuit court, the cause was submitted to the court sitting as a jury, upon an agreed statement of facts, and judgment was rendered for defendants in the sum of $ 1150, which the court found to be the value of the crop of corn involved herein. The court further found that at the commencement of this suit defendants were the owners of and entitled to possession of the growing crops on the land described in plaintiff's petition.
For a clear understanding of the case it is necessary to note some facts of record not clearly disclosed in the agreed statement. On November 26, 1927, and for a long time prior thereto, Miriam V. Hall, since deceased, owned a certain tract of land bordering on the Missouri River in Holt county, Mo., which she leased to one B. G. Quimby for a term of five years; that said Quimby, under the terms of said lease, entered into possession thereof on March 1, 1918, and during that year, sublet portions thereof to John L. and Homer B. Quimby who planted, cultivated and harvested the crop thereon; and in the year 1919, the said sub-lessees planted, cultivated and matured the corn in controversy upon land which was an accretion to the land owned by Miriam V. Hall, as aforesaid.
The agreed statement of facts is embraced in eighteen paragraphs, substantially as follows:
(1) That the parties are the same as those in the ejectment suit which previously had been brought in the Holt county circuit court.
(2) In the said ejectment suit plaintiff alleged that he was entitled to possession of the lands (described by metes and bounds, which included the accreted land in question;) that defendants, on April 1, 1919, entered such lands and unlawfully withheld them from plaintiff.
(3) That defendants were duly served with notice of the aforesaid action.
(4) That answer was duly filed therein.
(5) That Miriam V. Hall was made a party defendant on her own motion.
(6) That defendant Miriam V. Hall duly filed her separate answer.
(7) That the case came on for trial at the May term, 1920.
(8) That the jury found the issues as follows:
(9) That in the spring of 1919, defendants Quimby proceeded to cultivate the following tract of land. (Here follows description of the accreted land by metes and bounds.) These lands being part and parcel of the lands later recovered by the plaintiff in the here-inbefore mentioned ejectment suit.
(10) That immediately thereafter, the plaintiff served notice on the defendants to keep off the above-described land, and which notice was not obeyed by the defendants.
(11) That the cause now on trial was filed by the plaintiff in the Holt county circuit court on the 11th day of November, 1919, and summons and writ duly issued; by virtue of which writ the plaintiff went upon the land and gathered the then unsevered crop of corn, and which crop of corn, taken by the plaintiff herein, is hereby agreed between the parties to be, now, of the value of $ 1150.
(12) It is further agreed that the land from which the corn in the replevin suit was taken, is included in, and a part of the land recovered in the above ejectment suit.
(13) It is further agreed that in the trial of the ejectment suit herein mentioned the issues were found in favor of the plaintiff and judgment was rendered in his favor, accordingly, for the lands described therein.
(14) It is further agreed that the original file in the case on trial taken from the records of the circuit court of Holt county, Missouri, may be used in this case, the transcript of certified copies having been lost. It is further agreed that the exhibited copy of the amended reply may be used in the place of the originals.
(15) It is further agreed that the entire file and record of the proceedings in the ejectment suit, including the petition, the answer, the entry of appearances, the verdict of the jury and the judgment of the court therein is hereby considered in evidence in this case. It is further agreed that no relationship of landlord and tenancy has ever existed as to said lands between plaintiff and defendants herein.
(16) It is further agreed that at the time of the commencement of this suit, defendants Homer B. Quimby, John Quimby and Benjamin Quimby were in possession of the real estate mentioned and described in this suit under a contract of rental made with them by Miriam V. Hall, a defendant herein (who) had claimed said lands and who was also defendant in the ejectment suit referred to, and defendants had been so in possession of said lands for more than one whole year before the ejectment suit was commenced.
(17) It is further agreed that at the time of the commencement of this suit in replevin for the corn in question, the ejectment suit mentioned was pending in the Holt county circuit court against these same defendants and that issues were then joined involving the rights of possession, rents, profits and damages for this plaintiff and against these defendants for the same lands, whereon the corn in question was grown and standing.
(18) It is further agreed that the plaintiff herein under his writ of replevin did take possession of the corn in question, gathering same from the lands herein mentioned while same was in possession of the defendants, and while he, plaintiff, was out of possession of same and that said plaintiff used or disposed of said corn, that the same cannot be returned to or delivered back to defendants, and that the value of the property taken is now $ 1150.
Upon the facts thus presented the court found:
Motions for new trial and in arrest of judgment were overruled and plaintiff has appealed.
In the said ejectment suit tried prior to the present case, there was a judgment for plaintiff for the possession of the land in question, and $ 15 per month for rents and profits from the date of said judgment until the restoration of the premises. This case is now pending on appeal in the Supreme Court. The judgment in ejectment fails to assess damages, although pleaded in plaintiff's petition. While the ejectment suit was pending, the present suit was instituted.
It is plaintiff's position that action in replevin by the...
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