Haumueller v. Ackermann

• Decision Date: 14 April 1908
• Citation: 130 Mo. App. 387,109 S.W. 857
• Parties: HAUMUELLER v. ACKERMANN.
• Court: Missouri Court of Appeals

109 S.W. 857

130 Mo. App. 387

HAUMUELLER v. ACKERMANN.

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. JUDGMENT — TRIAL OF ISSUES — CONFORMITY TO VERDICT — EFFECT OF VARIANCE — ACTIONS FOR UNLAWFUL DETAINER.

In an action for unlawful detainer, the complaint laid the value of the monthly rents of the premises at $12.50, and prayed for judgment of restitution and damages in the sum of $12.50. The verdict was that the jury found defendant guilty in the sum alleged, and that plaintiff had sustained damages by reason of the premises in the sum of one cent, and that the value of the monthly rents of the tenement was $87.50. By the entry of judgment plaintiff was adjudged to recover from defendant the sum of $175 for damages for the taking and detention of the premises; that sum being double the value of the monthly rents from the date of notice to vacate to the date of judgment. Held that, while the jury no doubt intended the amount awarded as damages, or the amount of the rents and profits, the verdict was received and entered in the form recited, and the judgment must follow it, and the judgment entered, being materially different from the verdict, was erroneous.

2. LANDLORD AND TENANT — RECOVERY OF POSSESSION — UNLAWFUL DETAINER — JUDGMENT — FORM AND REQUISITES.

In an action for unlawful detainer, under Rev. St. 1899, § 3340 (Ann. St. 1906, p. 1887), providing that, if the verdict be for complainant, the judgment shall be that complainant have restitution, and recover double the sum assessed for damages, and double the sum found per month for rents and profits, a judgment must follow the verdict, except that it should be for double the damages and value of the monthly rents as found by the jury.

3. JUDGMENT — ON TRIAL OF ISSUES — RENDITION — AMOUNT OF RECOVERY — EXCEEDING DAMAGES ALLEGED.

In an action for unlawful detainer, where the complaint prayed damages in the sum of $12.50, it was error to award damages in the judgment for a much greater amount.

4. APPEAL — RECORD — QUESTIONS FOR REVIEW — ERRORS ON FACE OF RECORD.

In an action for unlawful detainer, where the judgment awarded nothing for future rents and profits, and departed materially from the verdict in that it awarded higher damages for the detention than laid in the complaint, it may be reviewed on the record proper.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Theodore H. Haumueller against Edwin Ackermann. From a judgment for complainant, defendant appeals. Reversed, and new trial ordered.

Davidson & Russell, for appellant. W. D. Isenberg, for respondent.

GOODE, J.

Action of unlawful detainer instituted before a justice of the peace appealed to the circuit court and there tried anew. The present appeal from the judgment of the circuit court was taken on the record proper, the principal error assigned being that the judgment is not in accordance with the verdict of the jury. The complaint lays the value of the monthly rents and profits of the tenement unlawfully detained at $12.50, and prays judgment of restitution and damages in the sum of $12.50. The verdict returned was in the following form: "We, the jury in the above cause, find the defendant guilty in manner and form as charged in the complaint, and further find that the plaintiff has sustained damages by reason of the premises in the sum of one cent,...