Gloria Lee Realty Co. v. Madigan

• Citation: 243 S.W.2d 118
• Decision Date: 16 October 1951
• Docket Number: No. 28161,28161
• Parties: GLORIA LEE REALTY CO. v. MADIGAN et al.
• Court: Court of Appeal of Missouri (US)

Page 118

243 S.W.2d 118

GLORIA LEE REALTY CO. v. MADIGAN et al.

No. 28161.

St. Louis Court of Appeals, Missouri.

Oct. 16, 1951.

Motion for Rehearing or for Transfer to Supreme Court Denied

Nov. 15, 1951.

James J. Milligan, St. Louis, for appellants.

George J. Brennan, Walter J. Kramer, St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal from an order of the circuit court dismissing an appeal taken to said court from a judgment rendered in a magistrate court. The action, as instituted in the magistrate court, was for two months' rent in the sum of $69, alleged to be due plaintiff, Gloria Lee Realty Company, from the defendant, James Madigan. Timothy J. Mullin, Charles M. Walters, Jr., Mullin-Walters Realty Company, Inc., and Enos Eaton were joined as co-defendants on motion of defendant, James Madigan. Thereafter, defendant, James Madigan, filed an answer to plaintiff's petition, as well as four counterclaims and cross-claims against plaintiff and the co-defendants above mentioned.

By his answer, defendant Madigan alleged that plaintiff and the co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin-Walters Realty Company, Inc., and Enos Eaton were the owners of and agents for the premises in question, and that he, defendant, had occupied said premises as a month to month tenant at a rental of $30 per month until the 18th day of November, 1949, at which date he vacated said premises without giving any written notice thereof to either plaintiff or said co-defendants. It was then alleged that defendant vacated said premises on said date by reason of being constructively evicted therefrom by the plaintiff and said co-defendants.

The acts alleged as constituting said constructive eviction were: permitting the roof of said building to fall into such a dilapidated condition that rain water ran through said roof and damaged defendant's furnishings and personal effects, and that said water caused the plastering on the ceilings and walls of said permises to fall at numerous places with the result that defendant's property was further damaged. It was alleged that on one occasion defendant received personal injuries as a result of said falling plaster. It was further alleged that as a result of said condition defendant was forced to abandon and move from said premises. By said answer the sum of $15 (one-half month's rent) was tendered.

By his first counterclaim and cross-claim defendant sought to recover the sum of $323, alleged to be the amount of the damage to his furniture, suffered as a result of failure on the part of plaintiff and the co-defendants to keep said premises in repair.

The second counterclaim and cross-claim alleged an overcharge for rent in excess of that permitted by the Federal Housing Act, 50 U.S.C.A.Appendix, Sec. 1881 et seq., in the sum of $36. Judgment was prayed for treble said sum, together with a reasonable attorney's fee, as provided by said Act.

In the third counterclaim and cross-claim defendant alleged an overpayment of rent in the amount of $45, for which sum he prayed judgment, together with punitive damages in the sum of $250.

By the fourth counterclaim and cross-claim defendant sought $500 actual damages and $250 punitive damages for his said alleged wrongful eviction.

Timothy J. Mullin, third-party defendant, filed an answer to the cross-claim filed against him by Madigan, which answer consisted of a general denial. Mullin also filed a cross-claim against said defedant. By said cross-claim he alleged that on May 31, 1946, he was the owner of the premises in question and, on said date, gave the defendant Madigan notice to vacate said premises by the 30th of July, 1946, in which said notice he advised said defendant that he desired the possession of the premises for occupancy by himself and wife; that said defendant refused to move, claiming defective service of notice and, through delay, dilatory tactics and technical defenses, placed him (Mullin) in the position of having no adode for himself and wife, with the result that he was compelled to purchase another residence. It was averred that as a result of the acts of said defendant, he (Mullin) was severely damaged and inconvenienced, and lost the earnings of the money invested in the premises so purchased, all to his damage in the amount of $1,500, for which sum he prayed judgment.

To the cross-claim of said Timothy J. Mullin, third-party defendant, the defendant James Madigan filed a reply which consisted of a general denial.

The trial in the magistrate court resulted in separate verdicts, as follows:

(1) On plaintiff's cause of action, plaintiff was awarded the sum of $15, which amount defendant Madigan, by his answer, had tendered for holding over fifteen days after the rent due date.

(2) On defendant Madigan's first counterclaim and cross-claim the sum of $200 was awarded said defendant against plaintiff and the co-defendants.

(3) On defendant Madigan's second counterclaim and cross-claim the jury awarded defendant Madigan damages in the sum of $95.85 against plaintiff and said co-defendants, and the court awarded an attorney's fee in the sum of $35.

(4) On defendant Madigan's third counterclaim and cross-claim the jury found in favor of defendant Madigan and against plaintiff and said co-defendants, and awarded said defendant actual damages in the sum of $45, and punitive damages in the sum of $1.

On defendant Madigan's fourth counterclaim and cross-claim the jury found the issues in favor of said defendant Madigan and against plaintiff and said co-defendants, and awarded said defendant the sum of $272 actual damages and $137 punitive damages.

The transcript does not show any disposition by the jury of the issues raised by the cross-claim of Timothy J. Mullin. There is no judgment on the verdicts appearing in the transcript. Appellants' counsel, in their brief, state that no final judgment was or has been entered on the said verdicts.

Thereafter, and within ten days after the rendition of the jury's verdict, plaintiff and said co-defendants filed in said cause the following notice of appeal (caption and signatures omitted):

'Notice of appeal is hereby filed with The Magistrate Court of the City of St. Louis, that the above-named plaintiff Gloria Lee Realty Company and co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin & Walters Realty Company, Inc., and Enos Eaton do hereby appeal to the Circuit Court of the City of St. Louis, Missouri, from the following verdicts of the jury and judgments entered on the 4th day of May, 1950, in Division Number 2 of the Magistrate Court, in the above-entitled case, to-wit:

'1. From the verdict of the jury and judgment entered in favor of the above-named Gloria Lee Realty Company and against the defendant James Madigan in the sum of Fifteen ($15.00) Dollars, on the 4th day of May, 1950.

'2. From the verdict of the jury and judgment entered in favor of the above-named James Madigan on his first counterclaim and cross-claim and against the plaintiff Gloria Lee Realty Company and co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin & Walters Realty Company, Inc., and Enos Eaton in the sum of Two Hundred ($200.00) Dollars, on the 4th day of May, 1950.

'3. From the verdict of the jury and judgment entered in favor of the above-named James Madigan on his fourth counterclaim and cross-claim, and against the plaintiff Gloria Lee Realty Company, a corporation, and co-defendants Timothy J. Mullin, Charles M. Walters, Jr., Mullin & Walters Realty Company, Inc., and Enos Eaton for actual damages in the sum of Two Hundred and Seventy-two ($272.00) Dollars and punitive damages in the sum of One Hundred and Thirty-seven ($137.00) Dollars, an aggregate of Four Hundred and Nine ($409.00) Dollars, on the 4th day of May, 1950.

'Date May 12, 1950.'

After the cause reached the circuit court, defendant James Madigan filed a motion to dismiss the appeal, alleging as grounds for said motion:

'(1) The aforesaid plaintiff and co-defendants, as appears on the face of...