Kerr v. Simmons

• Decision Date: 30 April 1884
• Citation: 82 Mo. 269
• Parties: KERR, Appellant, v. SIMMONS et al.
• Court: Missouri Supreme Court

82 Mo. 269

KERR, Appellant,

v.SIMMONS et al.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

APPEAL DISMISSED.

Thos. T. Gantt, for appellant.

The Supreme Court has jurisdiction of this appeal. The recovery of the rent for January was set up as a bar to the whole action, and the answer was insufficient for that reason. The claim of the plaintiff being for upwards of $4,000, and the defense interposed not being good in law, how can the jurisdiction of this court be questioned? Clearly, it will be necessary to go outside of the record to do this. The appeal brings up nothing except the sufficiency of the defense made by this “further answer” to the whole action. Whatever the court may conjecture, is really beside the question. And the practice will be novel, indeed, if conjectures are resorted to, in order to defeat the jurisdiction of this court. A demurrer admits only such facts as are well pleaded. A plea or answer which is interposed as a defense to the whole, but which only answers part of it and leaves the residue undefended, is demurrable for that reason. Sterling v. Sherwood, 20 Johns. Rep.; Gould on Pleading, pp. 362, 363; 1 Chitty Pleading (7 Am. Ed.) p. 554. The matter set up in the “further answer” of the defendants is not a bar to the whole action stated in the amended petition. Taylor on Landlord and Tenant (7th Ed.) § 525; Digby v. Atkinson, 4 Camp. 275; Schuyler v. Smith, 51 N. Y. 309; Conway v. Starkweather, 1 Den. 113; Bradley v. Covel, 4 Cow. 349; Abeel v. Radcliff, 15 John. 507; Hunt v. Bailey, 39 Mo. 257; Despard v. Walbridge, 15 N. Y. 374; Quinette v. Carpenter, 35 Mo. 502; Finney v. St. Louis, 39 Mo. 177.

Chester H. Krum and Walter B. Douglas for respondents.

This court has no jurisdiction of this appeal; the amount in dispute exclusive of costs, does not exceed the sum of $2,500. Const., art. 6, § 12; Lee v. Warren, 1 Wall. 337; Schacker v. Hartford Ins. Co., 93 U. S. 241; Gray v.Blanchard, 97 U. S. 564; Banking Asso'n v. Ins. Asso'n, 102 U. S. 121; Tinstman v. Nat. B'k, 100 U. S. 6; Pierce v. Wade, 100 U. S. 444. The contract sued on is an entirety, and one recovery having been had upon it, the whole demand was thereby merged in that recovery. The answer alleges that a recovery was had for the month of January. This averment the demurrer admits. The case falls, therefore, within the familiar rule, that a single or entire demand cannot be split up so as to constitute the basis of more than one suit. ““ Nemo debet bis vexari pro una et eadem causa.” Freeman on Judg., § 238; Wagner v. Jacoby, 26 Mo. 532; Miller v. Covert, 1 Wend. 487; Fireman's Ins. Co. v. Cochran, 27 Ala. 238; Secor v. Sturgis, 16 N. Y. 554; Stein v. Prairie Rose, 17 Ohio St. 472; Bancroft v. Winspear, 44 Barb. 209; Logan v. Caffrey,30 Pa. St. 196; Simes v. Zane,24 Pa. St. 242; Booge v. Railroad Co., 33 Mo. 212; Davis v. Maxwell, 12 Met. 286; Trask v. Railroad Co., 2 Allen 331; Pinney v. Barnes, 17 Conn. 420. There is no merit in the point, that the answer to the amended petition was a plea which answered only a part of the cause of action. The answer responded to the whole of the amended petition. It alleged a recovery for the month of January. There could be no better answer as to that part of the amended petition. It alleged a continuous withholding down to February 28, 1879. It pleaded the recovery for the days in January in bar to a recovery of the balance claimed for the days of February. The demurrer is so technical, that its grounds are as unstable as they are attenuated.

PHILIPS, C.

The plaintiff, Kerr, sued the defendants on a contract of lease. The pleadings and history of the action, based on the original petition, will appear by reference to the report of the case found in 9 Mo. App. Rep. 376.

On the reversal and remanding of the cause to the circuit court of St. Louis county, the plaintiff filed an amended petition, alleging, substantially, that on the 10th day of March, 1873, one Biddle leased certain property in the city of St. Louis to the defendants for a term to end on the 31st day of December, 1878, at the yearly rental of $12,500, payable in monthly installments. It averred that defendants in said contract of lease covenanted with said Biddle and his assigns, that they should pay to him or his assigns the rent reserved during the term, and that they would pay double the rent for every day they, or any one else in their name, should hold on to the said premises after the expiration of thesaid term, to-wit: after December 31st, 1878. That before the expiration of the term said Biddle granted to plaintiff, Kerr, the reversion of the demised premises, and assigned to him all the interest of Biddle in the said lease; and that defendants attorned to plaintiff. It is then averred that defendants withheld from plaintiff the possession of the premises after December 31st, 1878, and held on to the same until the 28th day of February, 1879. Wherefore, by reason of their said covenant, it is alleged the defendants became liable to pay plaintiff double the rent as aforesaid, for the months of January and February, amounting in the aggregate to the sum of $4,166.66 for which judgment is asked.

The defendants answered, denying generally the allegations of the petition, except as thereinafter admitted. The answer then, after admitting the execution of the lease, claimed that the petition did not fully and correctly set out its terms. It them averred that by the terms of the lease defendants covenanted to surrender the premises at the end of the term, and to pay double the rent reserved thereon for every day they should thereafter hold the same; that they did not surrender at its termination on the 31st day of December, 1878, but held on until the 28th day of February, 1879. It is then alleged that in 1879 the plaintiff brought suit against them on the same covenant sued on herein, and recovered judgment against them thereon, covering the month of January embraced in this action, in the sum of $2,126.63, which defendants have fully paid and satisfied.

To the matter pleaded in the last paragraph of the answer plaintiff demurred, chiefly on the ground that it professed to plead in bar to the whole action matter which constituted no defense to the entire action. The demurrer was overruled, and the plaintiff failing to reply, judgment was entered against him as for want of a reply. From this action of the court he appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed. He has brought the cause here on appeal.

I. The question lying at the threshold of this appeal is, has this court jurisdiction of the case? Section 12 of Article 6, of the State constitution, provides that: “Appeals shall lie from the decisions of the St. Louis court of appeals to the supreme court * * in the following cases only: In all cases where the amount in dispute, exclusive of costs, exceeds the sum of $2,500,””” etc. The amount sued for, on the face of the petition is $4,166.66; which sum represents the whole amount of rent for the months of January and February. The answer averred that plaintiff had recovered from defendants the sum of $2,126.63, being the amount of rent for said month of January, which would leave a balance only of $2,040.03, being less than $2,500. If, therefore, the state of the pleadings be such as to admit this fact, this court has no jurisdiction over the subject matter on appeal from the St. Louis court of appeals. The jurisdictional fact, in such cases is not necessarily to be determined by the sum demanded in the petition. The language of the constitution is, “the amount in dispute.” To ascertain the actual amount in dispute recourse should be had to the whole record. The federal statute providing for appeals from the circuit courts to the Supreme Court of the United States, contains the same language, in effect, “the matter in dispute.” In Lee v. Watson, 1 Wall. 337, the court says: “By matter in dispute is meant the subject of litigation, the matter for which suit is brought, and upon which issue is joined, and in relation to which jurors are called and witnesses examined.” So in Schacker v. HartfordFire Ins. Co., 93 U. S. 241, the...