Pierce v. Campbell

• Decision Date: 07 July 1925
• Docket Number: No. 19031.,19031.
• Parties: PIERCE et al. v. CAMPBELL et ux.
• Court: Missouri Court of Appeals

274 S.W. 875

PIERCE et al. v. CAMPBELL et ux.

No. 19031.

St. Louis Court of Appeals. Missouri.

July 7, 1925.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

Action by Thomas M. Pierce, Treasurer of Vandeventer Parks, and others, against M.

C. Campbell and Rosa D. Campbell, his wife. On dissolution of a temporary injunction, defendants had their damages assessed by a jury in their favor in the sum of $100, and plaintiffs appeal. Reversed.

T. M. Pierce and Samuel H. Liberman, both of St. Louis, for appellants.

Benj. J. Klene, of St. Louis, for respondents.

BECKER, J.

Upon the dissolution of a temporary injunction the defendants, under section 1959, Revised Statutes of Missouri 1919, had their damages assessed by a jury, resulting in a verdict in their favor for $100. From the resulting judgment the plaintiffs appeal.

Plaintiffs below resided in Vandeventer Place in the city of St. Louis, and instituted a suit in the circuit court of said city against one Adolph H. Branham and against M. C. Campbell, wherein it was alleged that the defendants were conducting a boarding house at 36 Vandeventer Place, in violation of certain restrictions limiting the use of the premises to that of a private dwelling house. A temporary injunction restraining the said defendants from a further violation of the alleged restrictive covenants was granted, upon the filing of a bond in the sum of $7,500, conditioned as required by law. Thereafter Rosa D. Campbell, wife of the defendant M. C. Campbell, was made a party defendant in the suit. She entered her appearance, and the temporary injunction heretofore mentioned was made effective as to her also. Upon a hearing of the case the following decree was entered of record:

"Now at ads day come again the parties hereto by their respective attorneys. Thereupon the further trial of this cause progressed before the court upon the merits, upon the plaintiffs' petition for a permanent injunction, and upon the separate answers of each of the defendants and the plaintiffs' replies thereto, and also for hearing upon the respective separate motions of defendant Marion C. Campbell and of defendant Rosa D. Campbell to dissolve the temporary restraining order issued by the court on July 25, 1923; and all and singular under the pleadings and the evidence the court doth find that said temporary restraining order was properly and providently issued, but that since the issuance thereof the two defendants Marion C. Campbell and Rosa D. Campbell have removed from the premises at No. 56 Vandeventer Place, * * * and that neither of them are residing therein nor have any interest in said premises at this time.

"Wherefore it is ordered by the court that said temporary restraining order as to said defendants Marion C. Campbell and Rosa D. Campbell be discontinued and dissolved, but at defendants' costs, and with prejudice to any right by said defendants Campbell, or either of them, to maintain any action or proceeding for damages against the plaintiffs or the sureties upon the bond given by plaintiffs upon the issuance of such temporary restraining order.

"And all and singular wader the pleadings and the evidence the court, upon the merits, of this action, does find the issues for the plaintiffs and against all of the defendants.

"Wherefore it is by the court considered, ordered, and decreed that the defendant Adolphus Branham, his servants, agents, and lessees, or any person for or under said defendant Adolphus Branham, be perpetually and permanently restrained and enjoined from using said lots and premises * * * as a boarding or lodging house, or for any other purpose than a private dwelling house, or for any trade or business of any kind, dangerous, noxious, or offensive to the neighboring inhabitants, or for any trade or business whatsoever, and from permitting more than one proper family from using such private dwelling house.

"And it is further considered, ordered, and decreed by the court that the plaintiffs have and recover of the said defendant Branham their costs, and that execution issue therefor. "And it is further considered, ordered, and decreed by the court that the defendants Marion C. Campbell and Rosa D. Campbell be finally discharged, but that plaintiffs have and recover of said last-named defendants their costs in this behalf laid out and expended, and that execution issue therefor."

In light of this decree, appellants urge that their demurrer, offered at the close of defendants' case, should have been sustained. The point is well taken. Section 1959, Revised Statutes of...