Heidemann v. Hellrung

• Decision Date: 17 May 1949
• Docket Number: No. 27547.,27547.
• Citation: 220 S.W.2d 737
• Parties: HEIDEMANN et al. v. HELLRUNG et al.
• Court: Missouri Court of Appeals

220 S.W.2d 737

HEIDEMANN et al. v. HELLRUNG et al.

No. 27547.

St. Louis Court of Appeals. Missouri.

May 17, 1949.

Rehearing Denied June 17, 1949.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

"Not to be reported in State Reports."

Attachment suit for rent by Kaspar Heidemann and Barbara Heidemann against Clarence Hellrung and Evelyn Hellrung. From a judgment of a magistrate court for defendants, the plaintiffs appealed to the circuit court. From a judgment of the circuit court for the defendants, the plaintiffs appeal.

Judgment affirmed.

Allen H. Whittington, St. Louis, for appellants.

Henry Ebenhoh, St. Louis, for respondents.

WOLFE, Commissioner.

This is an attachment suit for rent brought in a magistrate court where the writ was issued and executed. A motion "to dissolve and quash" the attachment was filed and upon a hearing on the motion and on the merits there was a finding for the defendants and the attachment was dissolved. Plaintiffs appealed to the circuit court where a jury was waived and a motion to dissolve the attachment was again sustained. There followed a hearing on the merits and after a judgment for defendants plaintiffs appealed.

This action was brought under Section 2986, p. 1108, Laws of Missouri 1945, Mo. R.S.A. § 2986, which provides in part: "Any person who shall be liable to pay rent, whether the same be due or not, * * * if the rent be due within one year thereafter, shall be liable to attachment for such rent, * * * when he intends to remove his property from the leased or rented premises".

Section 2987, R.S.Mo.1939, Mo.R.S.A. § 2987, provides that the proceedings under Section 2986 shall be the same as in other attachment suits.

Defendants filed a motion to quash the writ in accordance with Section 1478, R.S. Mo.1939, Mo.R.S.A. § 1478, which put in issue the facts alleged in the affidavit. As in the case of other attachment suits and in accordance with Section 1479, R.S.Mo. 1939, Mo.R.S.A. § 1479, there was a hearing on the motion and the plaintiffs produced the following testimony to sustain the affidavit.

The defendants leased from the plaintiffs a building in St. Louis and bought from them a bakery business. The bakery occupied the first floor of the leased building, which was a two-story structure, and there were living quarters on the second floor. The total sale price of the business was $5700, of which $1700 was for stock on hand. The defendants paid $3700 cash and gave the plaintiffs a mortgage for $2,000.

The rental was $1500 annually, payable at the rate of $125 per month and the mortgage provided for monthly payments of $100. The plaintiffs' son represented them in collecting the rent and mortgage payments, and he testified that prior to the institution of the suit he talked to Mrs. Hellrung about the December rent and that it was later paid. At the time of the conversation Mrs. Hellrung told him that they were losing money on the business and wanted to know if it would be agreeable to his father if they paid up the mortgage and put the fixtures in storage. The Hellrungs also told him that they would like to sell the business.

Plaintiff Kaspar Heidemann testified that on January 6 he called at the bakery with his son-in-law and that his son-in-law offered the defendants $1500 for the business but the offer was declined and the following day he brought this attachment suit. At the time the suit was brought no rent was owing.

A Mr. Seibeitz was called as a witness and he testified that the defendants had sought his advice about selling the business and asked about their rights under the lease.

Upon this evidence the court dissolved the attachment and later proceeded to hear the case on the petition which prayed judgment in the sum of $1500.

The only assignment of error presented is that the court should not have dissolved the attachment upon the showing made.

Section 1478, R.S.Mo.1939, Mo.R.S.A. § 1478, provides:

"In all cases where property, effects or credits shall be attached, the defendant may file a plea, in the nature of a plea...