Norvell v. Schupbach
| Decision Date | 06 February 1945 |
| Docket Number | 26729 |
| Citation | 185 S.W.2d 323 |
| Parties | NORVELL v. SCHUPBACH |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
John H Haley, of Bowling Green, for appellant.
Edward V. Long, of Bowling Green, and F. D. Wilkins, of Louisiana (Rendlen, White & Rendlen, of Hannibal, of counsel) for respondent.
This is an action by attachment to recover rent under the provisions of section 2986, R.S.1939, Mo.R.S.A. Plaintiff prevailed in the justice court, and defendant appealed to the circuit court. The trial of the plea in abatement with a jury in the circuit court resulted in a verdict in favor of plaintiff. The return of the verdict is shown by the record but no judgment was entered thereon sustaining the attachment. Afterwards there was a trial with a jury on the merits. The trial resulted in a verdict in favor of plaintiff for $ 210. On this verdict the court entered judgment as follows: 'It is therefore considered, adjudged and ordered by the court that plaintiff have and recover of and from the defendant, Arch Schupbach, the sum of two hundred and ten dollars as debt and damages aforesaid assessed by the jury with interest thereon at the rate of six per cent per annum from this date, together with all costs in this suit laid out and expended, for which execution may issue.'
The statement filed with the justice contains two counts. The first is for the recovery of rent on a one-story mercantile room known as 113 South Main Street in the city of Louisiana, Missouri. The second is for the recovery of rent for dewlling rooms on the second floor of a mercantile building known as No. 111 1/2 South Main Street in said city. Several grounds of attachment are alleged, but on the trial of the plea in abatement plaintiff submitted the cause on the ground that defendant intended to remove his property from the rented premises, or had within thirty days after the rent was due removed his property from the rented premises, thus abandoning other grounds alleged. Defendant duly filed his motion for a new trial within four days after the return of the verdict on the plea in abatement. While this motion was still pending the cause went to trial on the merits, the trial resulting in a verdict and judgment as above stated. Subsequently the motion for a new trial on the plea in abatement was overruled. Thereupon defendant filed his affidavit for an appeal, alleging that the appeal prayed for by him was not made for vexation or delay but because he considered himself aggrieved by the judgment and decision of the court in the matter of the attachment and plea in abatement, and an appeal was granted to this court. Defendant also filed an affidavit for appeal from the judgment on the merits, and an appeal was granted to this court. A short transcript of the record has been filed here showing the return of the verdict on the plea in abatement, the judgment on the merits, and the granting of the appeals.
Plaintiff has filed a motion here to dismiss defendant's appeal in the matter of the attachment and plea in abatement on the ground that there was no judgment rendered on the verdict sustaining the attachment. Defendant has filed a motion for leave to file 'a certified copy of the judgment rendered on the plea in abatement.' This motion should be overruled because the paper tendered to be filed is merely a certified copy of the record showing the return of the verdict which is already here in the short transcript. The motion to dismiss the appeal in the matter of the attachment and plea in abatement should be sustained because no judgment sustaining the attachment was rendered on the verdict of the jury. There is no judgment to appeal from. Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810; Hays v. Dow, Mo.App., 166 S.W.2d 309, loc. cit. 312, 313; Dale v. Copple, 53 Mo. 321.
When the case was called for trial on the merits plaintiff's counsel asked leave to amend the first count of the statement so as to include rent up to the time of the trial. Defendant's counsel objected thus: 'We object to such amendment.' Leave was granted, and the amendment was made apparently by interlineation. Defendant's counsel moved the court ore tenus 'to strike out the amendment.' The motion was overruled.
The evidence shows that plaintiff was the owner of a building consisting of a store room on the first floor with rooms above suitable for a dwelling place and a room attached on the south side of the building used as a storage room. Defendant rented from plaintiff the storage room to be used as a restaurant at $ 20 per month payable monthly in advance. Defendant also rented the rooms above the store for a dwelling place at $ 15 per month payable monthly in advance. Defendant made and paid for some repairs on the room to be used as a restaurant. He testified that under his agreement with the plaintiff the cost of these repairs was to be applied on the rent, but plaintiff testified that defendant was to make these repairs at his own expense.
The first count of the statement is for rent on the room used as a restaurant, and the second count is for rent on the rooms used as a dwelling place.
One day in the middle of August defendant closed his restaurant and locked it up, and the following day moved his household goods from the rooms used for a dwelling place, and left the city. He testified that he and his wife went to a farm which he had recently purchased in Ralls County, and told the plaintiff where he was going, and that he would return in about thirty days. Plaintiff testified that defendant told him nothing about going away, or where he was going, or whether or not he intended to return.
Subsequently, this suit was brought, a writ of attachment was issued, and the property located in the restaurant room consisting of equipment and supplies was attached.
The contract of renting was in parol, resulting in a tenancy from month to month. Up to the time of the trial the tenancy had not been terminated. The constable, who attached the property in the restaurant room, used the room for the storage of the property attached. To such use defendant made no objection, but apparently acquiesced therein, and he took no steps to terminate his tenancy. Plaintiff did not take possession of the room or exercise any dominion over it.
The result of the procedure in the circuit court is that plaintiff has a general judgment on the merits against defendant, directing the issuance of a general execution, or common fieri facias, with no judgment on the verdict of the jury sustaining the attachment. The trial on the merits without a judgment sustaining the attachment was irregular but not fatal to the judgment rendered on the merits. Nor do we understand that defendant contends otherwise. He raised no such question in the court below, and has raised none such here. Both parties appeared and went to trial on the merits without objection. The court was fully possessed of jurisdiction of the subject...
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