Haggard v. Walker
| Decision Date | 29 June 1908 |
| Citation | 111 S.W. 904,132 Mo.App. 463 |
| Parties | J. G. HAGGARD, Respondent, v. F. M. WALKER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Vernon Circuit Court.--Hon. B. G. Thurman, Judge.
REVERSED.
Judgment reversed.
J. B Johnson for appellant.
(1) The arrangement between plaintiff and defendant as to putting in the crop of wheat did not create the relation of landlord and tenant between them. Johnson v. Hoffman, 53 Mo. 504; Mosser v. Lower, 48 Mo.App. 85; Davis v Baldwin, 66 Mo.App. 577; Shoemaker v. Crawford, 82 Mo.App. 487. (2) The summary proceedings by attachment under the statutes governing landlord and tenant are available only when the relation of landlord and tenant exists. 24 Cyc., p. 1235.
Scott & Bowker for respondent.
(1) Where the appellant complains of the action of the court in refusing to give instructions in the nature of demurrer to the testimony he should set out all the testimony in his abstract of record, and unless he does so the court will not review the action of the trial court in regard to the instructions. Nash v. Brick Co., 109 Mo.App. 600; Keithley v. Independence, 120 Mo.App. 255; Cross v. Anderson, 107 S.W. 1107. (2) The testimony in this case showed such an agreement in reference to the rent as to give the respondent a right of attachment under the landlord and tenant statute for the same. R. S. 1899, sec. 4123; Carruthers v. Williams, 58 Mo.App. 100; Carruther v. Williams, 53 Mo.App. 181; Ford v Wycoff, 73 Mo.App. 141.
This is a suit by attachment under the landlord and tenant act to recover rent for certain alleged leased premises. The defendant filed a plea in abatement; and there was a trial before a jury and the verdict and judgment were for plaintiff, and defendant appealed.
The only evidence abstracted is that of the plaintiff's agent a Mr. Letton. It was shown by his testimony that the defendant at the time of the alleged lease, was living on other lands of plaintiff's under a contract to pay cash rent and had been occupying them for about three years. The land in question was separate from that of the other occupied by the defendant. Letton stated that he made a contract with defendant, on terms that plaintiff was to furnish in addition to the land, the wheat to be sown, and that defendant was to break the land in the fall, sow the wheat, cultivate, harvest and thresh it, and the crop was to be divided equally between them as was the custom.
The only question raised by the defendant on the appeal is the action of the court in refusing to give his demurrer to plaintiff's evidence as requested. The point upon which he relies is, that according to plaintiff's own showing without going any further into the evidence, that the relation of landlord and tenant did not exist. The respondent insists as all the evidence in the case is not given in haec verba the cause should be affirmed. And it was held in Nash v. Brick Co., 109 Mo.App. 600, 83 S.W. 90: "Where appellant assigns for error the action of the trial court in refusing a demurrer to plaintiff's case he must set out the whole of the evidence in haec verba in his abstract or the appellate court will not consider the assignment." In Keithley v. Independence, 120 Mo.App. 255, 96 S.W. 733, it was held that, "where the appellant wished the opinion of the appellate court on the sufficiency of the evidence he should abstract it all."
These decisions were intended to apply to cases, where the court could not know without all the evidence before it, what the testimony as a whole bearing on the issue might prove, or where it was evident that there was other evidence which had been omitted from the abstract that would supply or tend to supply...
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