Green v. Sternberg

• Decision Date: 15 January 1884
• Citation: 15 Mo.App. 32
• Parties: JACOB L. GREEN, Defendant in Error, v. B. L. STERNBERG ET AL., Plaintiffs in Error.
• Court: Missouri Court of Appeals

15 Mo.App. 32

JACOB L. GREEN, Defendant in Error,

v.B. L. STERNBERG ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Jan. 15, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

AUG. REBENACK, for the plaintiffs in error.

OVERALL & JUDSON, for the defendant in error.

BAKEWELL, J., delivered the opinion of the court

Green having purchased a house and lot in St. Louis occupied at the time of his purchase by Sternberg as tenant, began proceedings under the special provisions of the landlord's and tenant's act (Rev. Stats., sects. 3103-3105) to recover possession. From the judgment for possession before the justice of the peace, Sternberg appealed to the circuit court. On trial anew in the circuit court, there was judgment for possession, from which Sternberg appealed to this court, where the judgment was affirmed. Green v. Sternberg, 12 Mo. App. 578

The present action is upon the two appeal bonds executed by Sternberg as principal and his co-defendants as sureties. The petition has two counts, one upon the appeal bond executed in the justice's court, conditioned, as the statute requires (Rev. Stats., 3106), to pay “all damages, costs and rent, then due and to accrue;” the other count is upon the bond given in the circuit court, conditioned, as is the form for supersedeas bonds, to perform such judgment as shall be given by the St. Louis court of appeals, or such judgment as the St. Louis court of appeals may direct the circuit court to give; and if the judgment shall be finally affirmed, to comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded against him by the St. Louis court of appeals.

The answer was a general denial.

The record of the suit for possession offered in evidence showed that the judgment was for possession and that plaintiff recover of defendant and his sureties on the appeal bond his costs and charges. The record of this court shows that this judgment was affirmed.

It further appeared from the evidence that Sternberg remained in possession of the premises leased from plaintiff's grantor, from the time plaintiff acquired title and demanded possession, which was the 17th of November, 1880, until the 5th of June, 1882, paying no rent to plaintiff or any one else; that $16 a month was the rent that Sternberg had paid to Green's grantor, the rate demanded by Green on beginning his action for possession under the landlord's and tenant's act, and the reasonable value of the premises.

Defendant offered in evidence an exemplified copy of the record of a deed from plaintiff to the Connecticut Mutual Life Insurance Company conveying the premises in question. It appears that the company never demanded rent of Sternberg, and that Sternberg never paid rent to, or attorned to, the company.

The action for possession was begun on the 14th of January, 1881. The petition in this case was filed on the 31st of July, 1882.

No declarations of law were asked or given. The cause was tried without a jury. The court found for plaintiff, and assessed the damages on the first count at $200 and on the second count at $98.

Where proceedings under the landlord's and tenant's act are begun by a purchaser of the property against a tenant of the former owner, the tenant may attorn to the purchaser by paying the rent demanded before the justice. But, if he decline to do so, the judgment is not for rent, but for possession.

So, on the trial anew in the circuit court, the judgment, if for plaintiff, is for possession. Nothing is said in the statute about rendering a judgment for rent in such a case, either...