Folger v. Lowery
| Decision Date | 20 April 1948 |
| Docket Number | 27361 |
| Citation | 210 S.W.2d 1011 |
| Parties | FOLGER v. LOWERY |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Morris A. Shenker and John K. Regan, both of St. Louis, for appellant.
David Baron and Raymond M. Freed, both of St. Louis, for respondent.
McCULLEN
This suit was instituted in the Magistrate Court of the City of St. Louis, Missouri, by Irene Folger, Trustee, as plaintiff against Martin Lowery, as defendant, by the filing of an affidavit and complaint in an action of unlawful detainer. The cause was tried in the Magistrate Court and a judgment rendered therein in favor of plaintiff and against defendant. Defendant duly appealed to the Circuit Court of the City of St. Louis, Missouri, where the cause was heard on April 8 1947, by said Court without a jury -- a jury having been waived by the parties -- and resulted in a judgment on May 5, 1947, finding defendant guilty in the manner and form as charged in the complaint, and that plaintiff recover of defendant the sum of $ 1041 as damages for the unlawful detainer of the property described therein. It was also adjudged that plaintiff recover of defendant at the rate of $ 250 per month for rents and profits from May 5, 1947, until restitution be made. After an unavailing motion for a new trial defendant duly appealed to this court.
Defendant contends that the trial court erred in overruling his motion for a directed verdict at the end of plaintiff's case, because plaintiff's affidavit and complaint was insufficient in that it failed to allege that defendant wrongfully withheld the premises at the time the suit was instituted; that because of this alleged defect neither the Magistrate Court nor the Circuit Court obtained jurisdiction of defendant.
Plaintiff's complaint, which was sworn to on January 6, 1947, alleged, in the part thereof with which we are concerned on this appeal, that plaintiff 'on the first day of January, 1947, had and now has the legal right to the possession of the premises situated, described and known as first floor storeroom at 409 North Tenth Street, and that the above defendant willfully and without force holds the possession of said premises after the termination of the time for which they were let to him, and after demand made in writing for the delivery of the possession thereof.' (Emphasis ours.) The above allegations were followed in the complaint by allegations that plaintiff 'has sustained damages by reason of said unlawful detainer in the sum of One Hundred Twenty-five Dollars, and that the value of the monthly rents and profits of said premises is One Hundred Twenty-five ($ 125.00) Dollars.'
In support of his contention that plaintiff's complaint was insufficient, and that by reason thereof neither the Magistrate Court nor the Circuit Court acquired jurisdiction, defendant cites Del Commune v. Bussen, Mo.App., 179 S.W.2d 744, and Champ Spring Co. v. B. Roth Tool Company, 96 Mo.App. 518, 70 S.W. 506. We are unable to agree that said cases support defendant's contention.
In Del Commune v. Bussen, supra, the opinion of this court shows (179 S.W.2d loc. cit. 748) that the charge in the complaint was that: 'The said Charles Bussen, on the day and year aforesaid (May 23, 1942, being the date of the expiration of the lease), willfully and without force continued in possession of said described tract of land situated in the County of Ste. Genevieve, State of Missouri, after the termination of the time for which they were let to him.' (Emphasis ours.) Such an allegation was open to be objection that it did not necessarily charge that the defendant was in actual possession at the time of the institution of the suit. However, it will be seen that the allegation in said Del Commune case, supra, is quite different from the allegation in the case at bar, which is that: 'The defendant wilfully and without force holds the possession of said premises after the termination of the time for which they were let to him, and after demand made in writing for the delivery of the possession thereof.' (Emphasis ours.)
It is true this court held in the Del Commune case that the petition was defective in failing to allege that the premises were wrongfully detained 'at the time of the institution of the action.' But it was also held that, no attack having been made on the petition in the trial court, such defect was cured by the judgment. But, quite apart from our holding in the Del Commune case, we have no such defect in the complaint in the case at bar as appeared in the complaint in the Del Commune case.
The charge in the complaint in the case at bar, that 'defendant willfully and with out force holds the possession' -- being stated in the present tense -- clearly means that at the time the petition was sworn to and filed defendant was then unlawfully holding possession of the premises, as well as on December 31, 1946, the date on which he was required to vacate under the notice of termination of his tenancy. Said notice was introduced in evidence as Plaintiff's Exhibit 1. In this respect the complaint in the case at bar was in form and substance similar to those which have appeared in many cases wherein our appellate courts have held the complaint to be sufficient.
The complaint in the Champ Spring Company case, supra [96 Mo.App. 518, 70 S.W. 506], cited by defendant herein, was that said plaintiff company 'was entitled to possession of the premises on the 16th day of September, 1901, and on the 1st day of October, 1901, and that on the last date the defendant willfully and without force held over the leasehold premises * * * after the termination of the term for which they were let.' (Emphasis ours.) The action in said Champ Spring Company case was instituted on November 29, 1901. It therefore appeared that the allegation in the complaint in that case referred -- not to a present act or condition, but to a past completed act or condition, because it alleged that on October 1, 1901, plaintiff was entitled to possession, which did not constitute an allegation that on November 29, 1901, the date the suit was filed, plaintiff was entitled to possession. However, in said Champ Spring Company case the Court, in effect, held that even with said defect the complaint was sufficient to confer jurisdiction upon the court, and that the omission to plead the detention on the date the complaint was filed, even if it was a serioud defect, was cured by the judgment.
It will thus be seen that the two cases, supra, relied on by defendant in the case at bar, do not constitute authority for holding the complaint in this case insufficient. Complaints in actions of unlawful detainer, similar to the one filed in the case at bar, have been held sufficient in many cases decided by our appellate courts.
In Bradford v. Tilly, 65 Mo.App. 181, the complaint alleged that on March 5, 1894, Bradford 'had the legal right to the possession of (real estate described); and that W. L. Tilly, wilfully and without force holds the possession of the said premises after the termination of the time for which they were let to him, and after demand made in writing for the delivery of the possession of the same.' (Emphasis ours.) The complaint in said Bradford case further alleged that complainant had sustained damages by reason of the unlawful detainer, naming an amount, and that the value of the monthly rents and profits were of a certain amount, wherefore complainant prayed judgment for restitution and for damages, and the value of the monthly rents and profits.
It will be noted that the words 'wrongfully' and 'illegally' were not used in the complaint in the Bradford case, supra, nor in the case at bar. The charge in the Bradford case that the defendant 'holds' possession was the same as the charge in the case at bar.
Defendant in the Bradford case contended that the complaint of plaintiff therein was defective and did not confer jurisdiction on the court. The court overruled such contention and held that the statement in the complaint was sufficient to state a cause of action in unlawful detainer, which is equivalent to a present day holding that such a complaint is sufficient to 'set forth a claim for relief' under our new Civil Code, Laws Mo.1943, Section 36, p. 369, Mo.R.S.A. § 847.36.
In Kansas City Building & Loan Ass'n No. 6 v. Harding, Mo.App., 58 S.W.2d 795, 796, which was an action for unlawful detainer, defendant therein contended that the court lacked jurisdiction because of the insufficiency of the complaint. The complaint was similar to the one at bar in so far as the point raised by defendant herein is concerned. In ruling against the defendant in said case, the court said:
Citing Utt v. Winfrey, Mo.App., 235 S.W. 185. Kansas City Building & Loan Ass'n No. 6 v. Harding, Mo.App., 58 S.W.2d 795, 796. (Emphasis ours.)
Defendant in the case at bar further contends, however, that the complaint in the case at bar is fatally defective because it does not allege that the defendant...
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