Fanning v. Voelker

• Decision Date: 31 March 1867
• Citation: 40 Mo. 129
• Parties: MARY AND JOHN ARTHUR FANNING, BY PATRICK FANNING, THEIR NEXT FRIEND, Respondents, v. GODFREY VOELKER, Appellant.
• Court: Missouri Supreme Court

40 Mo. 129

MARY AND JOHN ARTHUR FANNING, BY PATRICK FANNING, THEIR NEXT FRIEND, Respondents,

v.GODFREY VOELKER, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Jecko & Clover, for appellant.

Cline & Jamison, for respondents.

FAGG, Judge, delivered the opinion of the court.

A minute examination of all the points raised in this case is not deemed necessary; they seem to be rather technical than otherwise, and substantial justice between the parties does not require that they should be discussed at any considerable length.

This action was instituted before a justice of the peace in the city of St. Louis, under the provisions of the act relating to landlords and tenants--R. C. 1855, ch. 94. The property is described as lots 38, 39 and 40, situated on Hickory street in said city. Mary Fanning is alleged to be the owner of lot No. 38, and John Arthur Fanning, who is a minor and who sues by his next friend, Patrick Fanning, owns the remainder, the improvements being partly on both of the lots numbered 38 and 39. This case, in due time and by regular steps, passed from the justice's court to the Circuit Court for St. Louis in special term and thence to the general term, the judgment being for the plaintiff at each trial. It is now here by appeal. Upon the trial in the Circuit Court, a motion was made to dismiss the cause on account of the insufficiency of the complaint filed. This was overruled and excepted to; but all that is really material in this motion may be noticed in considering the refusal of the court to give the instructions asked by defendant. No questions of law were raised and no exceptions taken to the testimony. At the conclusion of the plaintiff's testimony, the counsel for defendant asked the court, sitting as a jury, to declare the law to be that plaintiffs were not entitled to recover upon the proofs made.

We think the court committed no error in refusing the instruction. The law only required that the plaintiff should show on the trial that “the party in possession rented or leased from a party claiming title to the premises by deed, and that the plaintiff has acquired the title of the original lessor by deed or deeds regularly acknowledged.”--R. C. 1855, p. 1018, § 40. The testimony of the plaintiffs, whether it amounted to positive proof of each and every one of these facts, is a matter of no consequence. It tended to prove all, and upon that the court found its verdict. It cannot be asked of ...