Kingman v. Abington

• Citation: 56 Mo. 46
• Parties: NELSON KINGMAN AND MARY U. KINGMAN, Respondents, v. WILLIAM H. ABINGTON AND ARCHIE HATCHETT, Appellants.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

56 Mo. 46

NELSON KINGMAN AND MARY U. KINGMAN, Respondents,

v.WILLIAM H. ABINGTON AND ARCHIE HATCHETT, Appellants.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Charles Circuit Court.

The court refused the following instructions asked by defendant:

“The court declares the law to be, that when an appeal has been granted, the court has no further jurisdiction over the cause, and if the evidence in this cause shows that the verdict and judgment of the court in case of Kingman & Co. vs. Abington, rendered at its September term, 1871, has never been set aside, reversed or modified, then said judgment is still in full force and effect; and if the evidence further shows, that the subject matter in this suit is the same as in the former suit, then plaintiffs are barred by said judgment, and the verdict must be for the defendants.

Kellar & Buckner, for Appellants.

I. Whether O'Connor actually attorned to the grantees of the plaintiff, which he could have done, or defended himself on the ground that by the sale and deed the relation of tenant to his landlord had been extinguished, in either case his defense must have been successful. (Pentz vs. Kuester, 41 Mo., 447; Taylor Landl. and Tenant, § 629; Smith's Landl. and Tenant, p. 291, note and authorities there cited; 10 Hamp. 49; 6 Wend. 679; Tilghman vs. Little, 13 Ill., 241.)

II. The court should have given the instructions asked by defendants as to the effect of the former judgment of the inferior court, between the same parties, and for the same unlawful detainer. After granting of the appeal, the Circuit Court lost jurisdiction of the parties and the cause for every purpose. (Ladd vs. Cousins, 35 Mo., 513; Stewart vs. Stringer, 41 Mo., 403.)

Lackland & Broadhead, for Respondents.

VORIES, Judges, delivered the opinion of the court.

This was an action for unlawful detainer brought under the 3rd section of the statute of Forcible Entry and Detainer. (Wagn. Stat., 642.) The plaintiff, Mary U. Kingman, was a resident of the State of Indiana prior to her marriage with Nelson Kingman, and was the owner and in possession by her agent of a certain house and lot of land described in the complaint, situate in the town of Millville in the County of St. Charles. The land was leased or rented by her agent to one Jerry O'Connor. The time for which O'Connor had leased the lot expired, and he was notified by the agent of the plaintiffs at Millville to vacate said house and lot, and deliver up the possession in order that the house might be repaired for the use and occupancy of the plaintiff. O'Connor, in conformity to said notice and request, did remove from said house and premises. Immediately after O'Connor had vacated the premises, or at least on the next day thereafter, one William J. McElheny who claimed to have obtained title to the premises by virtue of a sale under a deed of trust, executed by said plaintiff Mary before her marriage with Kingman, without the consent of said plaintiff or her agent, but against their will, took possession of the premises by putting one Wray and Keys in the house who remained there for a short time, when defendant Abington was put in possession of the premises, and sometime afterwards, defendant Hatchett was also put into possession by the said McElheny. Each and all of these parties were put into and held the possession as the agents of McElheny. Neither of them were to pay any rent, but went into the possession merely to hold the possession and take care of the premises for McElheny, with the agreement and understanding with McElheny, that if they were sued for the possession or otherwise put to costs, &c., he was to save them harmless from all damages.

The plaintiff, Mary U. May, before her marriage with Kingman, on or about the 20th of August, 1870, demanded the possession of the premises in writing of the defendants; which demand was made before the commencement of the suit. Another demand was made by Nelson Kingman and said Mary after their marriage in March, 1872, which was also before the commencement of the suit. There was evidence tending to prove that Hatchett held possession by the permission of James Goff and Erastus Wells, and that there was an understanding between McElheny, Goff and Wells; that this suit and the suit of May vs. Luckett grew out of the same transaction of McElheny vs. May, and that they were all connected, and that the property had been bought for McElheny, and that McElheny was the real party interested and that there was some kind of an arrangement between McElheny, Goff and Wells about the matter, and that it was McElheny's attorney who put Hatchett in possession or authorized him to go into the possession. It was charged in the complaint filed in this case, that the defendants, while the plaintiffs were in the possession of the premises, wrongfully and illegally entered upon the premises against the will of plaintiffs, and wrongfully and without force by disseizin obtained and continued in the possession, and detained the same after the demand made in writing, &c. On the trial of this case in the Circuit Court, where the same had been taken by appeal, the defendants offered in evidence a deed of trust purporting to have been executed by the plaintiff Mary U May, before her marriage with Kingman, and which purported to convey the premises in question to one Oglesby, as trustee, with power to sell the land on certain conditions, and for certain purposes therein named; and also a deed from the sheriff of St. Louis county to James Goff and Erastus Wells, which purported to have been made under the power given in said deed of trust. These deeds were severally objected to by ...