Gary Realty Company v. Kelly
| Decision Date | 15 September 1920 |
| Citation | 224 S.W. 410,284 Mo. 418 |
| Parties | GARY REALTY COMPANY v. E. P. KELLY et al.; H. H. TAMMEN and F. G. BONFILS, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Transferred to Kansas City Court of Appeals.
Frank M. Lowe for movents and appellants.
To argue that the original judgment or double rent can be disposed of in this proceeding and made to give this court jurisdiction, is too ridiculous to discuss. We cite a few cases, not that the court is not familiar with the rule, but that it may have them at hand in this connection. Keleher v. Johnson, 199 S.W. 935; Keleher & Little v Henderson, 203 Mo. 498; Vanderberg v. Kansas City Gas Co., 97 S.W. 908.
Coopes Neel & Wright for respondent.
(1) This being an action in unlawful detainer and the motion to quash being directed only to the possessory part of the execution, the amount in controversy on the question of this court's jurisdiction is clearly the value of the possession of the premises in controversy. Such value is the rental value since only possession and not the title to the property is involved in this action. The only questions are what is the value of the possession and for what period of time is this value to be estimated in determining this court's jurisdiction? The motion of appellants seeks to stay enforcement of the judgment by execution issued August 4, 1919, and the motion was filed on the same day. Upon the overruling of this motion by trial court, appellants secured an order staying the execution by appealing to this court and furnishing a supersedeas bond. Such action kept complainant from getting possession until February 12, 1920, when a new writ of execution was issued upon appellants' failure to furnish a new supersedeas bond required by order of this court upon respondent's motion. So, clearly, the decision of this court on this appeal will determine whether appellants are liable to respondent for continuing to withhold possession of the premises in controversy from respondent from August 4, 1919 to February 12, 1920. The decision will also determine on the other hand whether respondent was entitled to such possession on February 12, 1920, and if not, then appellants were entitled to continue in possession; this appeal, therefore, will also decide the question of respondent's liability to appellants for the value of the possession from February 12, 1920, up to the time of the determination of this appeal. The two periods of time aforesaid from August 4, 1919, to February 12, 1920, and from February 12, 1920, to the time of the final determination of this appeal will cover, according to our estimate, some ten months. Evidence was offered in the trial court to show the monthly rental value of the premises at the time of the hearing on appellants' motion to quash the execution and disclosed same to be $ 1,000 per month. The value of the possession at the rate of $ 1,000 per month for ten months is $ 10,000. (2) But appellants are liable to respondent for double such monthly rental value, for this court held on the previous appeal that the lease, under which appellants claim, was terminated July 2, 1915, and that respondent has since been entitled to the possession. It follows that appellants have wrongfully been withholding possession from respondent, and even if appellants prevail on this appeal that decision will not operate to revive a dead lease, but would only have the effect of requiring us to start all over again in our suit to recover possession of respondent's property. Since appellants are wrongfully withholding respondent's possession after demand by execution at the hands of the sheriff, they are liable during all the time of their detention, including the said period from August 4, 1919, to February 12, 1920, to respondent for double the monthly rental value. Sec. 7879, R. S. 1909. And appellants' liability in this sort of a proceeding, in which they have intervened and filed a bond, is also doubled by operation of Section 7674 and 7675. So, applying these statutes of double liability, we estimate the amount involved at not less than $ 20,000, and if allowance of further time for final determination of this appeal by reason of possible motion for rehearing and to transfer to Court in Banc, such as were filed on the previous appeal, is made, then the total amount involved might reach $ 22,000 or $ 24,000. In fixing the amount of the new supersedeas bond required of appellants by this court by order made on December 22, 1919, evidently a similar basis of calculation was employed, as the court required the bond to be in the sum of $ 25,000. (3) But even a larger amount in value is really involved on this appeal. For the effect of sustaining appellants' motion to quash would be to render ineffective the judgment for damages secured by respondent in this action, March 18, 1916. That judgment was in favor of respondent awarding possession of premises in controversy, together with accrued damages to date of judgment in the sum of $ 4000 and at the rate of $ 1300 per month thereafter, so long as defendants continued to withhold possession, the trial court fixing the monthly rental value of the property at $ 650. At the time of the issuance of execution on August 4, 1919, there was an unpaid balance to respondent on this judgment of $ 32,829.91, as shown by the writ of execution set forth in the record. Interest and costs have accrued thereon since said date, August 4, 1919. Our point is that the effect of sustaining this motion would be to hold the judgment unenforcible as a money judgment as well as a judgment for restitution of possession. So we contend this situation increases the amount in controversy by some $ 35,000 or to a total figure of over $ 55,000.
WHITE, C. Railey and Mozley, CC., concur. Williamson, J., not sitting.
--The appeal in this case is from an order of the circuit court overruling a motion to quash a writ of restitution.
The plaintiff brought suit before a justice of the peace in Jackson County, in unlawful retainer, against the defendants E. P. Kelly, W. LeDoux, A. LeMarquand and Paul LeMarquand; the case was certified to the Circuit Court of Jackson County, where, March 18, 1916, judgment was entered in favor of the plaintiff against said defendants, awarding possession of certain premises in Kansas City, assessing damages for the unlawful detention of the property at $ 2,000, and the monthly rents and profits at $ 650, which were doubled by an order of the court and judgment rendered for $ 4,000 damages, and $ 1300 per month for rents and profits until the restitution of the premises. The case was appealed to this court where the judgment of the circuit court was affirmed. [Gary Realty Co. v. Kelly, 214 S.W. 92.] After affirmance of the judgment, August 6, 1919, execution was issued for the amount of the damages and costs then accrued, commanding the sheriff to deliver possession to the plaintiff. The amount of damages accrued at the time, including rents and profits up to the date of the issuance of the execution, and doubled in accordance with the terms of the judgment, was $ 32,829.29.
On August 7, 1919, G. F. Bonfils and Henry G. Tammen, not parties to the suit or the judgment, filed in the circuit court a motion to quash that part of the execution awarding possession to the plaintiff, leaving the execution for the money judgment against the defendants unaffected. This motion was presented under Section 2244, Revised Statutes 1909, which provides that any person "against whose property any execution or order of sale shall be issued" may apply to the circuit court for the purpose of having the same quashed. The motion sets up certain alleged irregularities in the certiorari proceeding, whereby the cause reached the circuit court from the justice of the peace, and alleges, among other things, that the movents are the owners of the property and the holders of the lease upon it.
The motion thus filed by...
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