Fisher v. Payton

Citation219 S.W.2d 293
Decision Date07 March 1949
Docket Number21060
PartiesFISHER v. PAYTON et al
CourtCourt of Appeals of Kansas

Not to be published in State Reports.

Appeal from Circuit Court Jackson County, Division No. 2; John F Cook, Judge.

Action in unlawful detainer by Mrs. J. E. Fisher against William Payton, and another. The action was instituted in the court of a magistrate, wherein plaintiff obtained judgment. The circuit court on appeal entered judgment in favor of plaintiff, and the defendants appeal.

Reversed and remanded.

J. K Owens, of Kansas City, for appellants.

Leo McShane, of Kansas City, for respondent.

OPINION

BOYER Commissioner.

Unlawful detainer. The action was instituted in the court of a magistrate of Kaw Township, Jackson County, Missouri. The complaint alleged that on the first day of March 1944, plaintiff was in the lawful and peaceable possession of a residence now occupied by the plaintiff at 1417 Prospect Avenue in Kansas City, Jackson County, Missouri, and the defendants were tenants occupying a room in said residence being the second floor southeast; that on the 19th day of June 1947, defendants wilfully and unlawfully detained possession of said premises; that plaintiff was entitled to possession thereof, and although plaintiff did on the 17th day of May 1947, demand in writing possession of said premises of the defendants they refused and neglected to give possession thereof to plaintiff's damage in the sum of $25.00. Plaintiff demanded judgment for possession of the premises and for said damages.

Upon the hearing before the magistrate, and upon default by defendants, plaintiff obtained judgment for possession of the premises and rent in the sum of $25.00. Defendants duly filed affidavit and bond for appeal, which said bond was approved and an appeal allowed to the circuit court of Jackson County. The case was tried in the circuit court before the judge thereof, a jury having been waived by the parties. At the conclusion of the trial, judgment was entered in favor of plaintiff for restitution of the premises and that plaintiff recover of defendants the sum of $25.00 for damages, and also at the rate of $6.00 per week for rents and profits from the 19th day of May 1947, and from the day of judgment until restitution be made. Defendants' motion for new trial was overruled and they gave the required notice for an appeal to this court.

The question for decision on this appeal as presented by appellants' brief, and in the absence of a brief for respondent, is whether there was any evidence that the notice to vacate was timely and in conformity with Sec. 2971, R.S.Mo. 1939, Mo.R.S.A. This issue was properly raised against the validity of the judgment in the motion for a new trial. The section of our statute in reference to landlords and tenants which is referred to reads as follows: " A tenancy at will or by sufferance, or for less than one year, may be terminated by the person entitled to the possession by giving one month's notice, in writing, to the person in possession, requiring him to remove; all contract or agreements for the leasing, renting or occupation of stores, shops, houses, tenements or other buildings in cities, towns or villages, not made in writing, signed by the parties thereto, or their agents, shall be held and taken to be tenancies from month to month, and all such tenancies may be terminated by either party thereto, or his agent, giving to the other party, or his agent, one month's notice, in writing, of his intention to terminate such tenancy."

The notice to vacate was dated May 17, 1947, and was served upon defendants the same day. It was offered in evidence and reads as follows:

"To William Payton and Mrs. Winnie Payton, Second Floor, S.E. 1417 Prospect, Kansas City, Mo.

"You are hereby notified to quit and deliver possession of the following described premises, situate in Kaw Township, Jackson County, K.C. Mo. to-wit: Room on second Floor Southeast at 1417 Prospect Avenue, in Kansas City, Kaw Township, Jackson County, Missouri, which is a room on the premises, which is the residence of the landlord, being the premises known as No. 1417 Prospect Ave. Kansas City, Mo.

"You are further notified to quit and deliver such possession at the end of thirty days from date of the service of this notice, and that said notice is for the purpose of terminating your tenancy of said premises for the reason that you have committed nuisances; in the residence at 1417 Prospect Ave., occupied by me as a home, and in which I have rented you a room, and which property I owned prior to 1941; and which I rented the room in 1944; the said nuisance consisting of the cutting scrapes and the cuts that the husband has inflicted upon you, using electricity for heating; pulling down the fixtures; and also jerking down the window shades; disturbing our peace, as well as the neighbors with your arguments and fights.

"A copy of this is being sent to the Temporary Control Rental Division, O.P.A. Interstate Bldg. 13th & Locust St. Kansas City, Mo.

May 17, 1947.

James E. Fisher, Owner

By La Vina Surber Fisher, Agent."

Plaintiff testified that the defendants refused to move from the premises after the notice was given; that she rented the room to defendants in 1944, and when it was first rented it was registered at $10 a week and later the Office of Price Adminisration reduced it to $6. She testified to the character of the nuisances which she claimed had been committed on the premises by the defendants; that the requirements of the Office of Price Administration had been met; that the defendants last paid rent which she accepted on the 19th day of May 1947; that they sent rent thereafter, but she did not accept it. There was no testimony or proof of any character of a written agreement existing between plaintiff and defendants.

From the express provisions of that section of our statute above quoted all tenancies in cities and towns, in the absence of a written contract between the...

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