Kennedy v. Prueitt

• Decision Date: 01 February 1887
• Citation: Kennedy v. Prueitt, 24 Mo. App. 414 (Mo. App. 1887)
• Parties: JOSEPH W. KENNEDY, Respondent, v. NEWTON PRUEITT, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 414

JOSEPH W. KENNEDY, Respondent,

v.NEWTON PRUEITT, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and judgment.

THOMAS A. RUSSELL, for the appellant: The jurisdictional facts must be alleged in the petition or complaint, and be proved on the trial, hence the appellant's instructions, in the nature of demurrers to the evidence, should have been given. Backenstoe v. Railroad, 86 Mo. 492; Roberts v. Railroad, 19 Mo. App. 649; Haggard v. Railroad, 63 Mo. 302; Creason v. Railroad, 17 Mo. App. 111; Schell v. Leland, 45 Mo. 289. The appellant's instructions, in the nature of demurrers to the evidence, should have been given, because the respondent's evidence showed that the appellant and his lessors had been in possession of the premises continuously for more than three years before the commencement of this suit, having them enclosed by a fence, which was maintained in such manner as to make it and continue it an actual possession as a matter of law in them. King v. Gas Light Co., 34 Mo. 34; Campbell v. Allen, 61 Mo. 581; Southmayd v. Henley, 45 Cal. 101; Gellespie v. Jones, 47 Cal. 259; Miller v. Northrup, 49 Mo. 397; Bartlett v. Draper, 23 Mo. 407.

PATTISON & CRANE, for the respondent: The jurisdiction of the justice appears on the face of the record. The locus in quo is sufficiently shown by the complaint, and the venue is well stated. The evidence of both parties established the fact that the situs of the property is the city of St. Louis. Walker v. Harper, 33 Mo. 592; Silvey v. Sumner, 61 Mo. 256; Tipton v. Swayne, 4 Mo. 98; Harvie v. Turner, 46 Mo. 444; 1 Rev. Stat., sect. 2805. Such defect, if it existed, is cured by the statute of jeofails. The instructions given at the instance of the respondent were unobjectionable; those refused were faulty, both in phraseology and substance, and were fully covered by those given at the appellant's instance. The instructions taken together properly declared the law. King v. Gas Light Co., 34 Mo. 34; Edwards v. Cary, 60 Mo. 572; Southmayd v. Henley, 45 Cal. 101. The constructive possession which remained in the complainant's grantors after their lessee left the premises, was transferred to the complainant. May v. Luckett, 48 Mo. 472.

ROMBAUER, J., delivered the opinion of the court.

A preliminary question to be disposed of is, whether the trial court had jurisdiction in the premises. The action is one of unlawful entry and detainer, and was removed by certiorari from the justice to the circuit court. As the circuit court has no original jurisdiction in these cases, it could acquire none by removal, provided the justice before whom the suit was originally brought had none. McQuoid v. Lamb, 19 Mo. App. 153; Gideon v. Hughes, 21 Mo. App. 528; Fletcher v. Keyte, 66 Mo. 285.

The complaint purports to have been filed before one Thomas Campbell, justice of the peace in and for the * * * to recover the possession of lands described as lot twenty-two of Graham's subdivision of the sulphur spring tract in the United States survey 2037, being now known as city block 4642, and the affidavit is sworn to before Thomas Campbell, justice of the peace, fourteenth district. The defendant appeared in obedience to a writ of summons directed to the constable of the fourteenth district of the city of St. Louis, and moved for a change of venue, which was granted, to the justice of the thirteenth district. The writ of the circuit court was directed to the justice of the thirteenth district of the city of St. Louis, who in obedience thereto certified the papers to the circuit court. The transcripts of both justices show that they were acting as justices in and for the city of St. Louis. Upon the trial in the circuit court, it appeared by documentary evidence offered by both parties that the premises in controversy were within the city of St. Louis. These being the facts bearing on the question of jurisdiction, we think the defendant is precluded from asserting with effect, for the first time after verdict rendered, that the justice had no jurisdiction, because the complaint is defective in the statement of jurisdictional facts. Walker v. Harper, 33 Mo. 592; Silvey v. Summer, 61 Mo. 256. This point, therefore, must be ruled against the defendant, the appellant, who now insists upon it.

Nor was there any error on the part of the court, in refusing the defendant's demurrer to the evidence, at the close of the plaintiff's testimony. The plaintiff had made a prima facie case, by showing some acts of possession under color of title, and there was some evidence tending to show that this was anterior to the defendant's entry. Taking, however, the facts of the case, as shown by the testimony of both parties, facts which are substantially uncontroverted, and we are clear that the plaintiff was not entitled to recover as a matter of law, and that the defendant's instruction, to that effect, when offered at the close of the entire testimony, should have been given.

The testimony shows the following undisputed facts: The premises consist of a ten-acre lot, broken in surface, and unfit for cultivation, which adjoins a lot of the same size used for quarry purposes. One Holland, under Bunch, was in possession of the premises prior to the early part of 1882, at which time they were surrounded by a substantial fence. In the early part of 1882, one Seimers, claiming under Bunch and Brault as far back as 1870, entered upon the premises, bought the fence from a person claiming to own it, and has ever since, by himself and his lessees, exercised some acts of possession over the premises, repairing the fences, and grazing cattle upon them, until in May, 1885, the defendant, claiming also under Seimers, moved some lumber upon the premises, out of which he subsequently constructed a shanty, which he occupies. The fence, in the meantime, by depredation of neighbors and others had suffered, until at best only two sides of it remained intact.

All the testimony, therefore, a great part of which was corroborated by the plaintiff's own...