Hubbard v. Quisenberry

• Decision Date: 21 November 1887
• Citation: 28 Mo.App. 20
• Parties: W. T. HUBBARD, Respondent, v. J. T. QUISENBERRY, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 20

W. T. HUBBARD, Respondent, v. J. T. QUISENBERRY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 21, 1887

APPEAL from Morgan Circuit Court, HON. E. L. EDWARDS, Judge.

Reversed and remanded.

The case is stated in the opinion.

WRAY & WRAY and COSGROVE & JOHNSTON, for the appellant.

I. The defendant was entitled to a trial upon the issues raised by his plea in abatement, before being compelled to go to trial upon the merits. Rev. Stat., sect. 439.

II. This was a suit by attachment brought before a justice of the peace. In the justice's court a plea in the nature of a plea in abatement was filed, and the justice refused to hear any evidence thereon, but merely made an order sustaining the attachment. In the circuit court defendant offered to file a plea in abatement, which was refused by the court. He then asked for a trial upon the plea in abatement, filed in the justice's court, which was also refused. Each plea, the one filed in justice's court, and the one offered to be filed in the circuit court, " put in issue the truth of the facts alleged in the affidavit, on which the attachment was sued out." Rev. Stat., sect. 438.

III. And the circuit court should have granted defendant a trial upon this issue. This was a trial de novo, and even if defendant had not pleaded in abatement in the justice's court, but only to the merits, he would not have waived his right to plead in abatement in the circuit court. Phillips v. Bliss, 32 Mo. 427.

IV. For the reason that no evidence should have been heard upon the merits, before the plea in abatement was disposed of, the instruction number four, asked by the defendant and refused by the court, which was in the nature of a demurrer to the evidence, should have been given.

V. There was only one final judgment rendered before the justice, and from that appellant appealed to the circuit court of Morgan county. The circuit court held, as did the justice, that the paper filed and printed, as respondent's abstract, though putting in issue the facts stated in the affidavit, was an appearance to the merits, and that appellant had waived his right to the trial upon the plea in abatement. The circuit court seemed to regard the rulings of the justice as res adjudicata. The appellant could only appeal from a final judgment, and in this case there was a judgment sustaining the attachment, and on the same day, and before the same justice, there was also a final judgment upon the merits, and the appellant then took his appeal from that final judgment to the circuit court of Morgan county. The correctness of that appeal is fully sustained by the following authorities: Davis et al. v Perry, 46 Mo. 449; Jones et al. v. Snorgrass, 51 Mo. 7; Walser v. Haley, 61 Mo. 445; Jones v Evans, 80 Mo. 365; Knapp et al. v. Joy et al., 9 Mo.App. 47. There is no conflict between the position here taken and the doctrine announced in Hicks v. Martin et al. (25 Mo.App. 359). The learned judge who wrote the opinion in that case did not hold that where, as in this case, the defendant was denied a trial of the plea in abatement, and judgment was rendered against him, sustaining the attachment, and a trial was had on the same day upon the merits, and judgment rendered for the plaintiff therein, that in order to get the whole case into the circuit court, the defendant was obliged to perfect two appeals--one from the interlocutory judgment, sustaining the attachment, and another from the final judgment upon the merits. The Revised Statutes (p. 75, sect. 472) provide that where the issues in an attachment are found for the defendant, the attachment shall abate, but, when found for the plaintiff, the cause shall proceed. Jones v. Snorgrass, supra.

VI. The cause of action, stated in the original complaint, filed before the justice, was for " use and occupation." It in no manner showed that the relation of landlord and tenant existed. The statute (Laws 1883, p. 104) requires in this kind of a suit, in justices' courts, that the plaintiff must state his cause of action in writing differing in this regard from most suits instituted before justices of the peace. Respondent could not have recovered upon the original complaint, as it stated no cause of action. Edmonson v. Kite, 43 Mo. 176; The Aull Savings Bank v. Aull's Adm'r, 80 Mo. 199. The amended complaint was an entire change of the cause of action sued on and tried in the justice's court. It was error to allow respondent to amend his complaint, by setting up an entirely new and different cause of action. Rev. Stat., p. 511, sect. 3060; Mitchell v. Railroad, 82 Mo. 106.

ANTHONY & ROSS, for the respondent.

I. There is no error in this record. Quisenberry, in the justice's court, failed to appeal from the judgment sustaining the attachment, and cannot be heard in the circuit court to dispute such judgment. Hicks v. Martin, 25 Mo.App. 359.

II. The same rules apply in justices' as in circuit courts. By pleading in abatement, and to the merits, in the same answer, the plea in abatement is waived. Cannon v. McManus, 17 Mo. 345; Green v. Craig, 47 Mo. 90.

III. No written plea was necessary in the justice's court. Rev. Stat., p. 75, sect. 471. It was necessary only to put in issue the facts alleged in the affidavit for attachment. But, Quisenberry, having elected to file a written plea in the justice's court, must stand or fall by his pleading--must abide its consequences. Bray's Adm'r v. Seligman, 75 Mo. loc. cit. 40.

IV. This court looks only to the abstract; only the amended statement filed in the circuit court is set out. Hyatt v. Wolfe, 22 Mo.App. 191. No point was made on the amended statement; only two errors are assigned. The first is, the trial court erred in not disposing of the plea in abatement. The second is, the refusal of an instruction, which is not set out in the abstract. This court will consider those two objections only. Wheeler v. Western Manufacturing Co., 23 Mo.App. 190.

V. The cause of action was not changed by the amendment in the circuit court. It was a proceeding to collect rent due in the beginning and so remained to the end. Brashears v. Shock, 46 Mo. 22; Chavin v. Sowers, 23 Mo. 227; Grimes v. Chiles, 28 Mo. 576; Harkness v. Julian, 53 Mo. 238. Besides, the objection is made for the first time in this court.

VI. As to the ruling upon the plea in abatement, the authorities cited by appellant, with, perhaps, one exception, antedate the change in the law, and hence have no application. This possible exception is 80 Mo. 565. If this opinion was rendered upon a suit commenced, and attachment issued, etc., or tried before section 439, Revised Statutes, 1879, was amended, or rather before section 42, of General Statutes of 1865, was amended, then the decision was correct. If after section 439 (as it now stands) was the law, said opinion is clearly not the law, so that in either case, it does not help the appellant.

PHILIPS P. J.

This action was begun in a justice's court. The statement of the cause of action alleged, substantially, that on the first day of March, 1885, plaintiff was the owner of an undivided fifteen-sixteenths interest in certain lands situated in Morgan county; that on said day the defendant entered into the possession of said interest, and used and occupied the same, and made a crop thereon during said year; that the whole of the premises so occupied were reasonably worth the sum of eighty dollars, and the fifteen-sixteenths interest of plaintiff therein was worth seventy-five dollars, for which judgment was asked. To this statement was appended an affidavit, under the landlord and tenant act, for an attachment, which alleged " that the plaintiff has a just demand against J. T. Quisenberry, the defendant, and that the amount which the affiant believes plaintiff ought to recover, after allowing all just credits and setoffs, is seventy-five dollars, now due, and that he has good reason to believe, and does believe, that the defendant is attempting to dispose of, and is disposing of, the crop grown on the demised premises mentioned in the accompanying petition, so as to endanger, hinder, or delay the landlord therein mentioned from the collection of his rent; and that he believes that unless an attachment issue he will lose his rent due him from said defendant."

The defendant appeared and filed the following plea in abatement " J. T. Quisenberry,...