McQuoid v. LaMb
| Decision Date | 27 October 1885 |
| Citation | 19 Mo.App. 153 |
| Parties | W. R. MCQUOID ET AL., Respondents, v. C. E. LAMB, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the Knox County Circuit Court, BEN. E. TURNER, Judge.
Reversed and dismissed.
L. F. COTTEY and O. D. JONES, for the appellant: The cause should have been dismissed. No cause of action is stated in amended complaint against the defendant. It is not stated the offence was in the absence of the husband or any other fact, to overcome the presumption that she did it, if at all, under the influence and direction of her husband. Dailey v. Houston, 58 Mo. 361. It is clearly error to admit the oral agreement of defendant, made October 25, 1883. She was then a married woman. If signed and executed in the most solemn form without her husband it would not sustain any action. Long v. Cockerell, 55 Mo. 93; Huff v. Price, 50 Mo. 228; Shroyer v. Nickell, 55 Mo. 264. The contracts of the parties on this subject were put in writing. On what principal is this side or outside oral agreement, made at same time, admitted? Chambers v. Board, 60 Mo. 370, 371; Henning v. W. S. Ins. Co., 47 Mo. 425. This action is one of possession, not title, or even the right of possession, or title, or any other mere equity. Clampitt v. Kelley, 62 Mo. 571. The court erred in refusing instructions asked by defendant, if the agreements, written and oral made by defendant, a married woman, were void in law when made, as is maintained by all the authorities. Shroyer v. Nickell, supra; Whiteley v. Stewart, 63 Mo. 360; Wolf v. Walter, 56 Mo. 292; Davis v. Smith, 75 Mo. 219; Alexander v. Lydick, 80 Mo. 341. Plaintiffs must show they “were in the actual, as contradistinguished from the constructive, possession of the premises at the time defendant entered.” Armstrong v. Hendrick, 67 Mo. 542. As where plaintiff had entered and plowed and left his mark. DeGraw v. Prior, 60 Mo. 56. But to enter and plow only a few furrows is not sufficient. Edwards v. Cary, 60 Mo. 572. Nor to cut timber alone. Powell v. Davis, 54 Mo. 315.MCQUOID & CLANCY, for the respondents: Respondents entered into the peaceable possession of said premises in good faith, with the intention of taking permanent possession of the same. They nailed up the doors and fastened the windows of the house and put up the fences. The appellant knew that respondents had the possession and the right of possession, and she further knew that she was a trespasser, in going back on said premises. Armstrong v. Hendrick, 67 Mo. 542; Kingman v. Abington, 56 Mo. 46; Bradley v. West, 60 Mo. 59; Edwards v. Cary, 60 Mo. 572; McCartney, Adm'r, v. Alderson, 45 Mo. 35; May v. Luckett, 48 Mo. 472; Powell v. Davis, 54 Mo. 315; DeGraw v. Prior, 68 Mo. 158; Bartlett v. Draper, 23 Mo. 407.
In an action of forcible entry and detainer the circuit court is not a court of original, but of appellate, jurisdiction. Under our statute, exclusive original jurisdiction vests in justices of the peace. It results from this, that no presumptions can be indulged by this court, in reviewing a judgment rendered by the circuit court, in such action, either in favor of the jurisdiction of the justice, or in favor of the jurisdiction of the circuit court. It is incumbent upon the party who claims under such judgment, affirmatively to show that the justice had jurisdiction in the premises originally, and that the circuit court subsequently acquired jurisdiction by certiorari, or appeal.
It appears in this case that an action of forcible entry was instituted by the plaintiffs, before a justice of the peace in Knox County, against Christiana E. Lamb, and others. The statement filed by them with the justice is not preserved in the record, and it does not appear whether such statement was in substantial conformity with the provisions of section 2423, Revised Statutes, a conformity with which is an essential prerequisite to the justice's jurisdiction. Fletcher v. Keyte, 66 Mo. 285.
The cause was subsequently removed to the circuit court by certiorari. The writ of certiorari performs no other office than...
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