McIlvain v. Kavorinos

• Decision Date: 14 March 1949
• Docket Number: 41123
• Citation: 219 S.W.2d 349,358 Mo. 1153
• Parties: Lettie B. McIlvain, Respondent, v. Antone Kavorinos, et al., Defendants, Bessie Kavorinos and James Kavorinos, Appellants
• Court: Missouri Supreme Court

219 S.W.2d 349

358 Mo. 1153

Lettie B. McIlvain, Respondent, v. Antone Kavorinos, et al., Defendants, Bessie Kavorinos and James Kavorinos, Appellants

No. 41123

Supreme Court of Missouri

March 14, 1949

Rehearing Denied April 11, 1949.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Appeal of Bessie Kavorinos dismissed. Reversed and remanded as to James Kavorinos.

J. K Owens and Marion D. Waltner for appellants; Clarence C Chilcott of counsel.

(1) The judgment herein is erroneous because it does not conform to the verdict in awarding plaintiff $ 5,040 damages when no damages were assessed by the jury as provided in Section 2845, Revised Statutes of Missouri, 1939. Haumueller v. Ackerman, 130 Mo.App. 387, 109 S.W. 857; Kaimann v. Kaimann, 182 S.W.2d 458; Nelson v. Alporte, 161 Mo.App. 605, 143 S.W. 519; Secs. 2845, 2850, R.S. 1939; Del Commune v. Bussen, 179 S.W.2d 744; Kelly v. Clancy, 15 Mo.App. 519; Allen v. Jackson, 216 S.W. 539; Texas Co. v. Wax, 226 Mo.App. 580, 14 S.W.2d 474; McKinney v. Harral, 36 Mo.App. 337; Porter v. Gibbs, 242 S.W. 1016; Gary Realty Co. v. Kelley, 278 Mo. 450, 214 S.W. 92; Downing v. La Shot, 202 Mo.App. 509, 212 S.W. 30; Shull v. Hatfield, 202 S.W.2d 916; Pierson-Lathrop Grain Co. v. Britton, 209 S.W. 331; Balch v. Myers, 65 Mo.App. 422; City of Jefferson v. Wells, 263 Mo. 231, 172 S.W. 329; Singleton v. K.C. Baseball Club, 172 Mo.App. 229, 157 S.W. 964; Newton v. St. Louis & S.F.R. Co., 168 Mo.App. 199, 153 S.W. 495. (2) It was error for the court to dismiss the cause as to Bessie Kavorinos as she had a joint interest with James Kavorinos in the business conducted at 3924 Main Street. Barnett v. Prudential Ins. Co., 194 S.W.2d 317; Lucas v. Fallon, 40 Mo.App. 551; Georges v. Hufschmidt & Mosby, 44 Mo. 179; Secs. 847.15, 853, R.S.A., 1939; McIlvain v. Kavorinos, 202 S.W.2d 103; Walter v. McSherry, 21 Mo. 76; 47 C.J. 88; Stewart v Patrick, 68 N.Y. 450; In re Fenton's Estate, 65 N.W. 463; D'Amato v. Kohlmeyer, 65 S.W.2d 178; Thornton v. Mersereau, 168 Mo.App. 1, 151 S.W. 212; State ex rel. Bevan v. Williams, 316 Mo. 665, 291 S.W. 481; Stokes v. Liverpool & London & Globe Ins. Co., 126 S.E. 649; Lawn Production Co. v. Bailey, 244 S.W. 283; Garrison v. Savignac, 25 Mo. 47; Oaks v. Aldrich, 46 Mo.App. 11. (3) The court erred in striking out defendants' motions for new trial on account of the insufficiency of the bond because under Section 2899, Revised Statutes of Missouri, 1939, he only had jurisdiction to affirm the judgment or dismiss the appeal. Schwoerer v. Christophel, 64 Mo.App. 81; State ex rel. Morris Building & Inv. Co. v. Brown, 228 Mo.App. 760, 72 S.W.2d 859; Reynolds v. Justice, 228 Mo.App. 246, 66 S.W.2d 169; Downing v. La Shot, 202 Mo.App. 509, 212 S.W. 30; Secs. 2898, 2899, R.S. 1939.

C. W. Prince and Landry Harwood for respondent.

(1) The judgment herein is not erroneous. It conforms to the verdict. Complaint need not state amount of damages claimed. Gary Realty Co. v. Kelly, 278 Mo. 450, 214 S.W. 92; Moore v. Dixon, 50 Mo. 424; Feedler v. Schroeder, 59 Mo. 364. (2) The rental value recoverable is the value during period of detention, and not that reserved in lease. Del Commune v. Bussen, 179 S.W.2d 744. (3) That is certain which can be made certain by simple arithmetical calculation. Gibson v. Lewis, 27 Mo. 532; Nelson v. Shreve, 79 S.W. 448, 104 Mo.App. 474; State ex rel. v. McElhinney, 100 S.W.2d 36, 231 Mo.App. 860. (4) If obscurity or irregularity of judgment may be dispelled by reference to the pleadings and the entire record and its intended significance made apparent thereby, the judgment will be upheld. Nelson v. Alport, 143 S.W. 519, 161 Mo.App. 605. It was not error for the court to dismiss the cause as to Bessie Kavorinos, as she was not a necessary party. (5) Suits may be brought against one or more co-partners. Sec. 3343, R.S. 1939; Welch-Sandler Cement Co. v. Mullins, 31 S.W.2d 86; National Cash Register Co. v. Kay, 93 S.W.2d 260; Tirry v. Hogan, 163 S.W. 873, 181 Mo.App. 48. (6) One who is not aggrieved does not have the right of appeal. Leonard v. Security Building Co., 179 Mo.App. 480, 162 S.W. 685; McCormack v. Dunn, 106 S.W.2d 933, 232 Mo.App. 371; Holdridge v. Marsh, 28 Mo.App. 293. (7) The landlord and tenant relationship presupposes a valid contract between consenting minds. Rees v. Andrews, 69 S.W. 4, 169 Mo. 177; Young v. Home Telephone Co., 201 S.W. 635; Whiteside v. Oasis Club, 142 S.W. 752, 162 Mo.App. 502; Marden v. Radford, 84 S.W.2d 947, 229 Mo.App. 789; Kniseley Lumber Co. v. Stoddard County, 131 Mo.App. 15, 109 S.W. 840; 40 Am. Jur., sec. 50, p. 944; Note, 15 Am. St. Rep., p. 60. (8) Notice to one partner is notice to all. 47 C.J., p. 897, note 28; Curtis v. Sexton, 159 S.W. 512, 252 Mo. 221; 47 C.J., p. 899, sec. 383; see also sec. 382; 40 Am. Jur. 149-150; McNally v. Leach, 204 S.W. 83; 24 Cyc., p. 1332, note 27; 52 C.J.S., p. 661, note 6; Grundy v. Martin, 9 N.E. 647, 143 Mass. 279; Sec. 2971, R.S. 1939. (9) The court did not err in striking out defendants' motion for new trial because of refusal or failure to comply with its order. Sec. 2887, R.S. 1939; Daniel & Henry Co. v. Bierman, 234 Mo.App. 792, 121 S.W.2d 200; Hammond Packing Co. v. Ark., 212 U.S. 322, 29 S.Ct. 370; State v. Rombauer, 15 S.W. 850, 104 Mo. 619; Pietzman v. City of Illmo, 141 F.2d 961.

OPINION

Douglas, J.

This is a suit for unlawful detainer of premises at 3924 Main Street in Kansas City. Upon a prior appeal from a judgment for plaintiff, the Kansas City Court of Appeals reversed and remanded. 202 S.W.2d 103. Plaintiff again recovered judgment. On second appeal the Court of Appeals affirmed. 212 S.W.2d 85. We refer to the opinions of the Court of Appeals for a full account of the facts. Thereafter the case was transferred to this court. We determine it as if originally appealed here.

The first question for decision is whether, in a jury trial for unlawful detainer, the trial court may enter a judgment for damages for the past due rents when the verdict of the jury is entirely silent as to such damages? We hold it has no authority to do so, and its judgment is erroneous.

Plaintiff makes no claim for damages for waste or injury to her premises. But she is claiming damages for the past rents due for the use of the premises for the period from November 1, 1945 to the date of the trial, October 20, 1947. The rental value during this period was strongly disputed. Plaintiff's evidence showed the value to be $ 125 per month. Defendant's evidence on the rental value ranged from $ 65 to $ 75 per month. It showed defendant had paid over the period of the month to month tenancy a monthly rent first of $ 50, then $ 65, and lastly $ 85.

The court submitted to the jury instructions on the various forms of verdict. The form of verdict for plaintiff as submitted was incomplete. In returning a verdict for plaintiff the jury followed the form prescribed by the instructions, as follows: "We the jury find the defendant guilty in manner and form as charged in the complaint, and do further find that the value of the monthly rents and profits of the said tenements is $ 105.00 dollars."

As is apparent, the verdict contains no mention or award of damages for the past rents due. However, the court itself determined the amount of such damages by using the figure of $ 105 found by the jury as the present value of the monthly rents. The court multiplied $ 105 by 24, the number of months it found the premises had been detained up to the time of trial. It doubled the product of $ 2520, as required by statute, and entered a judgment for $ 5040. Thus we find in the judgment an award of damages not even mentioned in the verdict.

The statutes providing for the practice and procedure in unlawful detainer have been held to constitute an exclusive and special code within itself. Gary Realty Co. v. Kelly, 278 Mo. 450, 214 S.W. 92. The statutory provisions for the action of unlawful detainer are set out in detail in Article 2 of Chapter 12, R.S. 1939, Mo. RSA., as reenacted, 1945 Laws, p. 1089.

Section 2845 states what the form of a verdict for a complainant shall include, as follows: "Whenever the verdict of the jury or finding of the magistrate shall be for the complainant, damages shall be assessed as well for waste and injury committed upon the premises found to have been forcibly or unlawfully detained, as for all rents and profits due and owing up to the time of the rendering of the verdict or finding of the magistrate, and such verdict or finding shall also state the monthly value of the rents and profits of said premises." It is obvious the verdict in this case did not comply with the requirements of this provision.

The form of judgment is also prescribed. Section 2850. The judgment in this case follows the required form. But the fact the form of judgment is thus prescribed does not authorize the court to incorporate in it a matter not found by the verdict. All the sections of the statutes must be read together.

There is also a particular provision conferring limited authority to correct a verdict. Section 2848 provides: "No verdict shall be set aside for informality, but the magistrate may in the presence of the jury, correct the same in matters of form, changing no matter of substance." Upon an appeal to the circuit court a case is tried anew. However the circuit court must observe the special statutory provisions governing this action. On appeal a circuit judge is bound by the provisions of Section 2848. Such a judge may in the presence of the jury correct a verdict in matters of form but may not change any matter of substance.

It must follow that if the judge may not change the verdict itself in a matter of substance, he may not do so in effect by entering a judgment...