Drey v. Doyle

• Decision Date: 20 December 1887
• Citation: 28 Mo.App. 249
• Parties: ALBERT DREY, Appellant, v. M. W. DOYLE, Respondent.
• Court: Missouri Court of Appeals

28 Mo.App. 249

ALBERT DREY, Appellant, v. M. W. DOYLE, Respondent.

Court of Appeals of Missouri, St. Louis.

December 20, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

CHRISTIAN & WIND and DAVID GOLDSMITH, for the appellant: The notice was sufficient. Walker v. Sharp, 14 Allen 43; Steffins v. Earl, 40 N.J. 123. But if formally insufficient its defects were waived. Boynton v Bodwell, 113 Mass. 531; 2 Taylor on Landlord and Tenant secs. 472, 488, pp. 51-58; Wade on Notice, sec. 647, p. 363. The pendency of the other suit could not abate this one. Carter v. Skaggs, 38 Mo. 302, 305; Dunn v Miller, 8 Mo.App. 467; Ekey v. Inge, 87 Mo. 493.

JOSEPH A. ROBERTSON and JOSEPH S. LAURIE, for the respondent: The second suit should have been abated. 45 Mo. 294; 47 Mo. 344. The tenancy was from year to year. Railroad v. Ludwig, 6 Mo.App. 583. Notice to quit was insufficient. Wilgus v. Lewis, 8 Mo.App. 339; Gunn v. Sinclair, 52 Mo. 327. In support of the propositions involved, as to the identity of the action, the conclusiveness of a judgment, and effect of another action pending, see the following authorities: Armstrong v. City, 3 Mo.App. 104; Tutt v. Price, 7 Mo.App. 194; Spradling v. Conway, 51 Mo. 54; Lee v. Bowman, 55 Mo. 400; Stewart v. Dent, 24 Mo. 111; White v. Van Houton, 51 Mo. 577; Hughes v. Hood, 50 Mo. 550; Herman on Estoppel, secs. 237 b, 243, 251, 287, 1051; Freeman on Judgments, sects. 256 and 259; Mullen v. Mullock, 22 Kan. 598.

OPINION

ROMBAUER J.

This is an action of unlawful detainer, and the plaintiff's statement is the only written pleading therein. Upon trial in the circuit court the defendant gave in evidence the record of an ejectment suit wherein the plaintiff had recovered judgment, and it was admitted then and there that the parties in said suit were the same as in this, that the plaintiff in said suit relied on evidence which was the same as in this, and claimed possession of the same property under the same title on which he relied in this case. The court thereupon directed the jury to find a verdict for the defendant, which they did.

The only question presented for our consideration on this appeal is whether this ruling was correct.

The ejectment suit was first instituted, and was pending when the action for unlawful detainer was brought, and it appears is still pending, on an appeal taken by the defendant from a judgment rendered by the circuit court, in the plaintiff's favor. When the record was offered in evidence judgment had been rendered therein, but no appeal taken. This, however, is immaterial, as it is substantially conceded by the appellant that if the record thus introduced was legal evidence, either of " another action pending," or of " former recovery," the action of the circuit court in instructing for the defendant was proper.

It has been decided that a judgment in favor of the defendant in an action of forcible entry and detainer is no bar to a subsequent action by the plaintiff in ejectment. Carter v. Scaggs, 38 Mo. 302. Judge Holmes, in deciding the question, says: " The issues to be tried are not at all the same. In one case, the matter of the forcible entry and unlawful invasion of an actual possession only is involved; in the other, the absolute right of the possession is to be tried and determined. Under the statute even one action of ejectment is no bar to another upon the same cause of action."

The proposition, that one action of ejectment is no bar to another for the same land, has been repeatedly decided. Slevin v. Brown, 32 Mo. 176; Holmes v. Carondelet, 38 Mo. 551; Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493; Dunn v. Miller, 8 Mo.App. 467. It is true that in all these cases the judgment claimed as a bar was one in favor of the party seeking to avail himself of it as a defence, but in principle there can be no difference whether the judgment be in favor of one party or another, provided it has not been satisfied. If the plaintiff in this case had obtained possession in ejectment any subsequent action in ejectment would have necessarily abated, on the sole ground that a party can obtain but one satisfaction, even though he may have several actions for the same cause.

It has been decided in other jurisdictions that, as a former judgment or recovery can not be pleaded in bar to a subsequent suit between the same parties in an action of ejectment, it would seem to follow that the pendency of another action between them at the time the second suit is brought will not be good in abatement (Hall v. Wallace, 25 Ala. 438); that a plaintiff in whose favor a verdict of ejectment was rendered may maintain a second ejectment for the same land without taking possession or issuing process for that purpose under his first ejectment. Rambler v. Tryon, 7 Serg. & R. 90; Ross v. Pleasants, 19 Pa.St. 157.

If the pendency of one action of ejectment is not available as a plea of " " another action pending" in a subsequent action of ejectment between the same parties for the same land, it is difficult to conceive how that fact can be made available by such a plea in an action of unlawful detainer. It can not be contended that there is a greater identity between a suit of unlawful detainer and an action of ejectment for the same land than there is between two actions of ejectment in which the parties and subject-matter are the same. The defendant can not claim oppression until he at least surrenders possession in the first action, nor is the defence claimed on the ground of oppression in this instance. Both parties stand on their technical legal rights, neither claiming any particular equity, and as the plaintiff's technical legal rights can not be successfully challenged, and are not opposed by any equity on the defendant's part, they must prevail.

The respondent, however, contends that, even conceding that the instruction of the court can not be supported for the reason hereinabove stated, yet, there was no error, since the plaintiff failed to give any legal notice terminating the defendant's tenancy, and, therefore, could not recover in this action.

This brings us to the second question raised by the record, namely, whether the court was justified in instructing the jury to find for the defendant, because no legal notice to quit and surrender the premises was ever given by the plaintiff to the defendant.

On this branch of the case the facts pertinent to the issue are the following: The complaint was filed September 29, 1886. It described the premises in controversy as a lot of ground sixty by one hundred feet, with all improvements thereon, situated in the city of St. Louis, and states that the lot and premises were let to the defendant for a term expiring August 31, 1886, and that the defendant has ever since said date wilfully and without force held them over.

The plaintiff gave evidence tending to show that the premises were owned by one Lucas, who, July 1, 1886, conveyed them to one Nelson; that Nelson, shortly thereafter, conveyed one undivided half to one Hammett, and that Nelson and Hammett, by deed of general warranty, bearing date July 13, and delivered July 28, 1886, conveyed them to the plaintiff. All these deeds were conveyances in fee.

The plaintiff also gave evidence tending to show that the premises are, and were during the entire term of their occupation by the defendant, covered by a twostory brick stable erected thereon; that the agent of Lucas, Nelson, and Hammett was one Turner, to whom the defendant paid a monthly rent of seventy dollars for the premises, the last receipt given being as follows:

" M. W. Doyle to Hammett & Nelson, Dr.

To one month's rent of stable No. ___ on 11th & St. Charles streets, city block No.____ from July 1 to August 1, 1886 $70.00.

St. Louis, July 16, 1886. Received payment.

CHARLES H. TURNER & Co., agents.

Per W. P. H. TURNER."

The plaintiff then testified that, on July 30, 1886, he gave to the defendant in person the following notice to quit:

" St. Louis, Mo., July 30, 1886.

Mr. M. W. Doyle, City.

D'r Sir: Pursuant to the statute in that behalf provided I hereby give you thirty days notice in writing of my intention to terminate your tenancy for the following premises in the city of St. Louis, and state of Missouri, now held by you as my tenant, to-wit: The two-story brick building now used by you as a livery-stable, located on the southwest corner of Eleventh street and St. Charles street, being sixty feet on west line of Eleventh street by one hundred feet on south line of St. Charles street, city block 823, and I require you to surrender up possession of said premises on the first day of September, 1886, pursuant to this notice.

ALBERT DREY."

And received from Doyle the following note in reply:

" August 3, 1886.

Mr. Albert Drey,--

Dear Sir: I beg to acknowledge receipt of your letter of July 30 in regard to the...