Goodwin v. Costello

• Decision Date: 24 May 1948
• Citation: 212 S.W.2d 804,240 Mo.App. 656
• Parties: H. D. Goodwin, Respondent, v. Maxwell Costello and Sam Arello, Appellants
• Court: Kansas Court of Appeals

212 S.W.2d 804

240 Mo.App. 656

H. D. Goodwin, Respondent, v. Maxwell Costello and Sam Arello, Appellants

Court of Appeals of Missouri, Kansas City

May 24, 1948

Delivered

Appeal from Circuit Court of Jackson County; Hon. John R. James Judge.

Affirmed with directions.

George M. Hare and Charles V. Garnett for appellants.

(1) The execution having been issued for an amount greatly in excess of the amount due, and defendants having offered to pay the amount actually due, the Trial Court erred in overruling the motion to quash the execution. Pflanz v. Pflanz, 237 Mo.App. 873, 177 S.W. 2d 631. (2) Notwithstanding the finality of the judgment in unlawful detainer, plaintiff is not entitled to rent "until restitution be made," because restitution by defendants was and is impossible. Kelly v. Clancy, 15 Mo.App. 519. (3) Under the undisputed evidence, defendants cannot make restitution, and are not liable for rent after the date of the unlawful detainer judgment. George v. Walker (Mo. Sup.), 19 S.W. 2d 284; Rodney v. Gibbs, 184 Mo. 1, 82 S.W 187; Bobb v. Taylor, 193 S.W. 800; Zantnir v Butler, 157 S.W. 588; Hunter v. Mathewson, 129 S.W. 749; Willow Springs Creamery Co. v. Mountain Grove Creamery Company, 197 S.W. 916.

Guy W. Runnion, Wm. Dennis Bush and C. W. Prince for respondent.

(1) The judgment is conclusive as to the amount due. Consolidated School Dist. v. Day, 43 S.W. 2d 428, 328 Mo. 1105. (2) A judgment in unlawful detainer is a finality and binding upon the parties and every defense that could have been raised is concluded. Norman Land Co. v. Idalia Realty Co., 226 S.W. 43, 205 Mo.App. 474; Autenrieth v. Bartley, 176 S.W. 2d 546. (3) The court had no jurisdiction to enjoin the enforcement of the judgment rendered by the Independence Division. Flinn v. Richardson, 15 S.W. 2d 941; State ex rel. v. Landwehr, 27 S.W. 25, 324 Mo. 1122; Pettus Adm. v. Elgin, 11 Mo. 411; State ex rel. Sexton v. Roehrig, Judge, 323 Mo. 575, 19 S.W. 2d 626. (4) This court will take judicial notice of its records in a former appeal in the same case. Sabol v. St. Louis Cooperage Co., 31 S.W. 2d 1041. (5) A person who interpleads in a suit claiming an interest in the property is bound by the judgment as an estoppel. 34 C. J., page 1008, Sec. 1428; 50 C. J. S., pages 316, 320, Secs. 781, 784; Richardson v. Watson, 23 Mo. 34.

OPINION

Cave, P. J.

This is an appeal from the order of the trial court overruling defendants' motion to quash an execution. The judgment upon which the execution is based was entered April 23, 1946, upon plaintiff's (Goodwin's) complaint in unlawful detainer. The judgment awards plaintiff possession of premises, which will be referred to as the "liquor store", being a part of a 16-acre tract of land in Jackson County; and awards plaintiff a money judgment for $ 780, rents accrued, plus $ 2.00 double damages, plus $ 80 per month for double rents from the above date until restitution be made, with costs. That judgment was later affirmed by this court in Goodwin v. Holland et al., 200 S.W.2d 588.

The execution recites that the judgment was rendered against Maxwell Costello and Sam Arello for the sum of $ 780, plus $ 2.00, and also $ 80 a month for rents and profits from the 23rd of April, 1946, until restitution be made, and directs the sheriff to cause to be made the sum aforesaid to satisfy the judgment, interest and costs.

The motion to quash the execution pleads that defendants are not now, and have not been, in possession of the premises described in the judgment since the date of its rendition; alleges that the whole amount due plaintiff is $ 782, plus interest and costs, and tenders that amount. The motion also alleges that because the execution is for a greater amount than the amount actually due, it is irregular and void, and prays that the execution be quashed upon the payment to plaintiff, or into court for benefit of plaintiff, the sum of $ 782, plus interest and costs. The tender made by defendants was declined.

To support the allegation of the defendants that they were not then, and had not been, in possession of the premises since the date of the judgment of the unlawful detainer suit (April 23, 1946), they offered in evidence, without objection, a petition filed in Division 4 of the Circuit Court in Kansas City by Marie Costello against plaintiff, Goodwin, and the sheriff of Jackson County, seeking to enjoin them from interfering with her right to possession of the "liquor store" under any writ of restitution issued, or to be issued, on the unlawful detainer judgment. The injunction petition alleges that Marie Costello (plaintiff therein) is the owner of an estate by the entirety in and to an undivided one-half interest in the 16-acre tract which is improved by a tavern building, a smaller building, known as the retail liquor store, and other improvements; that the other half interest in said tract is owned by Grace Dodds; that she and Mrs. Dodds are cotenants; that Goodwin, claiming to be the lessee of Mrs. Dodds of the entire 16-acre tract, has obtained a judgment in unlawful detainer against Mike Holland, Maxwell Costello and Sam Arello, awarding Goodwin possession of the "liquor store"; that Marie Costello was never a party to the unlawful detainer action; that neither of the Costellos ever authorized their cotenant, Dodds, to enter into any contract with Goodwin, and that Marie Costello had never consented to or ratified any such lease contract; that Marie Costello is and always has been in the actual possession of the "liquor store", and that Goodwin has not been, and is not entitled to, the possession thereof. The prayer of the petition is that Goodwin and the sheriff be permanently enjoined from interfering with Marie Costello's right to possession of the "liquor store" under any writ of restitution issued or to be issued in the unlawful detainer action.

Goodwin filed an answer in the injunction suit and, among other things, admitted that Marie Costello "has been and is now in the actual possession" of the "liquor store", but denies that she has a lawful right to the possession.

Upon a trial of that suit, the court found that the allegations of Marie Costello's petition were true; that she is the owner of an estate by the entirety in an undivided one-half interest in and to the "liquor store" and the 16-acre tract; "that the right of plaintiff (Marie Costello) to the possession of said retail liquor store is superior to any right or claim of right to the possession by the defendant, H. O. Goodwin, * * *". (Italics ours) This judgment was entered November 29, 1946. Goodwin and the sheriff appealed and the judgment was affirmed by this court at this term, but not yet published (our case No. 20945).

Neither of the defendants (Maxwell Costello and Sam Arello) testified at the hearing on their motion to quash the execution. However, they called Marie Costello as a witness, who testified that she was not a party to the unlawful detainer suit, that she brought the injunction suit as plaintiff, and that she is in possession of the property known as the "liquor store"; that she owns and operates that business herself and has been in possession of that property at all times since April 23, 1946, and was in possession long before that time, to-wit, from and after August 4, 1939; that she and her husband, Maxwell Costello, had been partners in the business, but that he had given her his interest therein; that for the past 4 years, except for a few months, he has been physically incapacitated and has been in a sanitarium at Tucson, Arizona; that Sam Arello is not in possession of it, but just works for her as an employee on a salary basis; that she never paid rent on the property to Goodwin, and her husband never paid any rent to him; that she never did authorize anyone to pay rent and did not know that Sam Arello paid any rent to Goodwin; that when she was in Arizona with her husband, Arello conducted and managed the business as her employee.

Defendants contend that the execution should be quashed because it authorizes the sheriff to levy upon their goods to collect $ 80 per month as double rent from the date of the judgment in the unlawful detainer suit "until restitution be made"; and that the evidence introduced at the hearing on their motion proved conclusively that they have not been in possession of the property since the date of the unlawful detainer judgment, and that they cannot make restitution to Goodwin because of the judgment in the injunction suit above referred to.

We should examine the status of Goodwin and Mrs. Costello concerning this property. It is conceded that Mrs. Dodds and Mr. and Mrs. Costello were tenants in common in all of the 16-acre tract and the improvements thereon. Mrs. Dodds, by a written instrument, leased the entire tract to Goodwin for a period of 5 years, but neither Mrs. Costello nor her husband signed that lease or authorized Mrs. Dodds to do so on their behalf, or ratified her action. These facts are definitely settled by the judgment in the injunction suit brought by Mrs. Costello. The judgment in the unlawful detainer suit definitely settled the proposition that Goodwin sublet the "liquor store" to defendants, Mr. Costello and Arello, and that they had been in possession thereof as his tenants. But Mrs. Costello contends that she was not bound by the lease made by Mrs. Dodds to Goodwin or by the judgment in the unlawful detainer suit against Mr. Costello and Arello, and that her right to possession of the property was unimpaired and unaffected by the Dodds lease or by the judgment of the unlawful detainer suit.

It is the well settled law that a single cotenant has no power to lease the entire estate, or any specific portion thereof, to the...