Hadley v. Bernero

• Citation: 71 S.W. 451,97 Mo. App. 314
• Court: Missouri Court of Appeals
• Decision Date: 16 December 1902
• Parties: HADLEY et al. v. BERNERO et al.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 451

97 Mo. App. 314

HADLEY et al. v. BERNERO et al.^*

Court of Appeals at St. Louis, Missouri.

December 16, 1902.

JUSTICES' COURTS—UNLAWFUL ENTRY AND DETAINER — APPEAL — PRESUMPTION — JUDICIAL NOTICE—TERM—VACATION — APPEAL BOND—SURETY.

1. An appeal from the judgment of a justice of the peace in an unlawful entry and detainer action is returnable to the circuit court within six days after the rendition of the judgment, if the judgment is rendered during a term of the circuit court to which the appeal is taken.

2. The word "term," in the statute on the subject, signifies the entire period from the first day of a term, as fixed by law, to its close; and the word "vacation" is the period between the final adjournment of one term and the beginning of another.

3. Appellate courts will take notice of the terms of the circuit courts as prescribed by the statutes, but not when terms are ended by final adjournments, although any court may take notice from its records of its own sessions, adjournments, and vacations.

4. As the circuit court retained this case, and as there is no proof in the record that the appeal was taken from the justice while the circuit court was in session, this court must presume that the circuit court rightly exercised jurisdiction.

5. A summary judgment against a surety on an appeal bond in an unlawful entry and detainer case is erroneous, but the judgment need not be reversed as a whole for that reason, but may be treated as a nullity as against the surety.

6. A stipulation in a lease that, if a sale of the property shall be made during the continuance of the lease, the lessees will vacate and deliver up possession on 30 days' notice in writing, is a covenant which runs with the reversion, and inures to the benefit of a grantee of the fee.

7. A judgment for twice the value of the monthly rents and profits of the premises is rightly given in an unlawful detainer case for the wrongful detention of the premises after notice to vacate, and the stipulation made by the parties in this case did not confine the damages for detention to a nominal sum.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; Daniel D. Fischer, Judge.

Action by Leo C. Hadley and another against David Bernero and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Vernon W. Knapp, for appellants. Jesse A. McDonald, for respondents.

GOODE, J.

In January, 1899, one A. J. Geraghty, owner, leased certain premises in the city of St. Louis, for and during the term of five years, to commence July 1, 1899, to Vincent Bernero and David Bernero, and the last clause in the lease read as follows: "It is further agreed between the parties hereto that, should a sale of said property be made during the continuance of this lease, said lessees will vacate and deliver up possession of said property upon a thirty (30) days' notice in writing so to do." The lessees entered into possession of the premises under this lease, and were at the time of the beginning of this action, and still are, in possession. The lessees, together with their subtenants, Henry Robbins and William Bedford, are the defendants and appellants in this case. On May 28, 1901, the lessor, A. J. Geraghty, sold the premises to Bradford Schinkle. On June 5, 1901, Bradford Schinkle sold the property to Leo G. Hadley and Owen M. Dean, the plaintiffs in this action. On the 28th day of June, 1901, one Manley W. Mann, as agent for plaintiffs, delivered to the lessees a paper notifying lessees to vacate and deliver up possession on or before October 1, 1901, which paper is the alleged notice under the last clause of the lease. On the 4th day of September, 1901, plaintiffs filed their complaint before a justice of the peace for unlawful detainer, and on October 18, 1901, the justice of the peace rendered judgment against the defendants. On the 26th day of October, 1901, more than six days after the justice rendered judgment, defendants filed their affidavit for appeal and recognizance, and on that day the bond was approved, and an order allowing the appeal was made by the justice. At the trial of the cause in the circuit court the following agreement was introduced in evidence, to wit: "It is agreed between counsel for plaintiffs and counsel for defendants that the damage to the property of defendants since August 1, 1901, is one dollar, and that a fair rental value of the premises was seventy dollars per month on and from August 1, 1901, and is the same to-day." Defendants were found guilty of unlawful detainer, as charged in the complaint, and plaintiffs' damages assessed at the sum of $495, and the value of the monthly rents and profits at $70. The court thereupon rendered judgment that the complainants have restitution of the premises described in the complaint, and recover of the defendants and Louis Bernero, surety on the appeal bond, the sum of $990 damages, and also at the rate of $140 per month for rents and profits from the date of the judgment until restitution be made, together with their costs and charges, and have execution therefor. Points made for a reversal are that the circuit court acquired no jurisdiction of the appeal; that it erroneously entered judgment against the surety on the appeal bond; that the conveyance of the reversion did not transfer to the assignee the benefit of the covenant to vacate on 30 days' notice if a sale was made; and that no more than nominal damages for withholding the premises could be rightly adjudged against the defendants.

1. The jurisdiction of the circuit court is challenged on the ground that as the judgment of the justice of the peace was rendered during the October term of the St. Louis circuit court, and eight days before the appeal was applied for and granted, the circuit court was without jurisdiction of the cause, since the statutes make appeals in forcible entry and unlawful detainer actions returnable within six days after the rendition of judgment, if the judgment is rendered during a term of the circuit court to which the appeal lies. Rev. St. 1899, § 3370.

(a) Appellants admit that no proof was offered at the trial of this cause in the circuit court, which occurred during the March term, 1902, to show said court was not in vacation on the 18th day of the preceding October, when judgment was given by the justice of the peace; but they contend that the circuit court should have taken judicial notice of the fact that that day was in term time, and have dismissed the appeal. As to the meaning of the sections of the statutes bearing on this question, we think they use the word "term" to signify the entire period from the first day of a term as fixed by law to its final close, and the word "vacation" to signify the period between the adjournment of any term and the beginning of another, not merely an interval when the court is not in session from having adjourned for more than a day, but not to court in course. Brayman v. Whitcomb, 134 Mass. 526; Bronson v. Schulten, 104 U. S. loc. cit. 415, 26 L. Ed. 997; State v. Derkum (K. C.) 27 Mo. App. 628. By this construction, a temporary adjournment of the St. Louis circuit court would not have relieved the appellants of the duty to perfect their appeal from the judgment of the justice of the peace if given in term time, inside of six days after its rendition. We may take notice of the terms of our circuit courts as prescribed by the statutes, and that one of the terms of the St. Louis circuit court began on the first Monday in October, 1901, but we cannot know officially when that term finally closed. A court may take notice of its own sessions, adjournments, and vacations, from its records; but, for some other tribunal to learn those things, evidence must be adduced, and for an appellate court to know them the evidence must be preserved. Robinson v. Walker, 45 Mo. 117; Bauer v. Cabanne (St. L.) 11 Mo. App. 114; Dudley v. Barney, 4 Kan. App. 122, 46 Pac. 178; Kent v. Bierce, 6 Ohio, 336. As the trial court retained and decided this cause, we must presume it did so properly in the absence of proof to the contrary,—must presume it found the appeal from the justice of the peace was in time, because taken during the vacation between the October and December terms. This was ruled in Bauer v. Cabanne, supra, where it was said: "The circuit court may rightly take judicial notice from its own records of the times when it is in vacation and when it is in session. In the absence of any showing or suggestion that such were not the facts, we must presume in support of the action of the court that it did take official notice of such facts from its records." In Kansas City v. Clark, 68 Mo. 588, and Feurth v. Anderson, 87 Mo. 354, it was said that an appeal from an inferior court will be presumed to have been taken within the time allowed by law, when the record shows nothing to the contrary, and favorable suppositions are generally indulged to uphold the rulings of subordinate courts of general jurisdiction; those who complain of their rulings being required to make affirmative proof of the facts necessary to support an assignment of error, instead of invoking a presumption. State v. Baty, 166 Mo. 561, 66 S. W. 428; City of St. Louis v. Lanigan, 97 Mo. 175, 10 S. W. 475; State v. Mackin (K. C.) 51 Mo. App. 299; State v. Brown, 75 Mo. 317; McClanahan v. West, 100 Mo. 309, 13 S. W. 674; Hamer v. Cook, 118 Mo. 476, 24 S. W. 180; State v. Bank of Neosho, 120 Mo. 161, 25 S. W. 372.

(b) Appellants applied to this court for a writ of certiorari to the clerk of the St. Louis circuit court, directing said clerk to make the record show that the appeal from the justice of the peace was taken during the October term, and on that application a writ was ordered directing the clerk to show the circuit court was in session on the 30th day of November, when the justice's transcript was filed in his office, if that was the fact. On our ordering the writ of...