Hadley v. Bernero

• Decision Date: 16 December 1902
• Citation: 71 S.W. 451,97 Mo.App. 314
• Parties: LEO G. HADLEY et al., Respondents, v. DAVID BERNERO et al., Appellants
• Court: Missouri Court of Appeals

71 S.W. 451

97 Mo.App. 314

LEO G. HADLEY et al., Respondents, v. DAVID BERNERO et al., Appellants

Court of Appeals of Missouri, St. Louis

December 16, 1902

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

AFFIRMED.

Judgment affirmed.

Vernon W. Knapp for appellants.

(1) All of the evidence presented at the trial in the circuit court is preserved in the bill of exceptions, and the only evidence therein of the amount of damages is contained in the agreement that those damages amounted to one dollar. It was therefore error to allow a greater amount of damages in the verdict. Moore v. Dixon, 50 Mo. 424; Balch v Myers, 65 Mo.App. 422. (2) The statute concerning bonds on appeals from justices court in suits of unlawful detainer does not authorize a summary judgment against sureties on the appeal bond as in ordinary cases brought up from justices. Powell v. Camp, 60 Mo. 569. It was therefore error to give judgment as was done in this case against the defendants and the surety on the bond, and the judgment ought to be reversed on that account.

Jesse A. McDonald for respondents.

(1) The clause in the lease providing for the termination of the tenancy is a condition in the nature of a covenant which runs with the land, and the language employed shows clearly the intent of the parties that it should go with the reversion. Roe v. Hayley, 12 East. 464; Callan v McDaniel, 72 Ala. 96; Same Case, 75 Ala. 327. (2) And otherwise the condition would be ineffectual, as it only becomes operative in the event of a sale, and after a sale the lessor, by reason of lack of interest, could not exercise the option of terminating the lease. Griffin v. Barton, 49 N.Y.S. 1021. (3) There is no ambiguity in the clause in the lease. It is a covenant for the benefit of the owner of the reversion and he is the person by whom the notice should be and was given. Taylor v. Frohock, 85 Ill. 584; Johnston v. King, 83 Wis. 8. (4) And the forcible entry and detainer statute provides that "the determination of any lease by forfeiture shall, within the purview of this chapter, have the same effect as if the term thereby created had expired." Sec. 3354, R. S. 1899. (5) The defendant's term having been brought to an end on July 31, 1901, by the plaintiff's notice, their holding over that day made them guilty of an unlawful detainer. "If a lease does not require any particular form of notice of the election to terminate it, a notice in general terms is sufficient. Leases for terms of years quite often confer upon the lessee an option to terminate the lease before the expiration of the term and reserve to the lessor a similar privilege. . . . Where the term was assigned by the lessee a privilege of terminating the lease conferred on the lessee inures to the benefit of the assignee; and where the reversion is conveyed a similar privilege conferred on the lessor inures to the benefit of the grantee of the reversion." 18 Am. and Eng. Ency of Law (2 Ed.), p. 630.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

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 lessee will vacate and deliver up possession of said property upon a thirty 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 twenty-eighth 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 fourth 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 twenty-sixth 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 four hundred and ninety-five dollars, and the value of the monthly rents and profits at seventy dollars. 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 nine hundred and ninety dollars damages and also at the rate of one hundred and forty dollars 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 thirty 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. R. S. 1899, sec. 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 eighteenth 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. 525; Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797; State v. Derkum, 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 can not know officially when the 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, 11 Mo.App. 114; Dudley v. Barney, 4 Kan.App. 122, 46 P. 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 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,...