Prendergast v. Graverman

• Citation: 147 S.W. 1094
• Parties: PRENDERGAST v. GRAVERMAN.
• Decision Date: 04 June 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 1094

PRENDERGAST v. GRAVERMAN.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

1. APPEAL AND ERROR (§ 717)—ABSTRACT OF RECORD — WRITTEN OPINION OF TRIAL COURT.

The written opinion of the trial court, trying a case without a jury, cannot be noticed on appeal, when not in the abstract of the record.

2. LANDLORD AND TENANT (§ 54) — DISTURBANCE OF TENANT'S POSSESSION — RIGHT OF ACTION.

Where an owner leases his premises, and the lessee, at the time of an entry and detainer by a third person, is the tenant under the lease, the right of action for unlawful detainer accrues to the tenant, and not to the owner.

3. APPEAL AND ERROR (§§ 1010, 1011) — FINDINGS—CONCLUSIVENESS.

A finding on conflicting testimony of witnesses before the court trying the case without a jury is conclusive on appeal.

4. FORCIBLE ENTRY AND DETAINER (§ 9)— RIGHT OF ACTION — POSSESSION — REQUISITES.

A plaintiff, to maintain unlawful detainer, under Rev. St. 1909, § 7657, need not actually be on the land, or keep servants there; but any act done by him on the premises, indicating intention to hold the possession thereof to himself, is sufficient to give him actual possession, sufficient to maintain the action.

5. LANDLORD AND TENANT (§ 54) — DISTURBANCE OF POSSESSION—RIGHT OF ACTION.

Where a lessee abandoned the premises, the right of possession reverted to the owner, who must be considered possessed of the premises, though not personally present; and he may maintain an action for unlawful detainer, under Rev. St. 1909, § 7657, against a third person.

6. FORCIBLE ENTRY AND DETAINER (§ 8)— ISSUES—EVIDENCE.

An action for unlawful detainer must be determined on the relative rights of possession between the parties, and the question of title is immaterial.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Mary Prendergast against Charles Graverman. From a judgment for plaintiff, defendant appeals. Affirmed.

Wm. F. Broadhead, of Clayton, for appellant. R. H. Stevens, for respondent.

REYNOLDS, P. J.

This is an action for unlawful detainer of nine and a fraction acres of land in St. Louis county, the action brought under section 3321, R. S. 1899, now section 7657, R. S. 1909. The cause was tried before the court, a jury having been waived, and at the conclusion of the testimony defendant asked four declarations of law. First, that for plaintiff to recover in this action, she must show that she was in the actual, peaceable, visible, open and exclusive possession of the land described in the complaint at the time of the alleged unlawful entry by defendant and that defendant then unlawfully entered upon and disseized her of the land. Second, that the possession necessary to be shown by plaintiff is a real, exclusive, visible, actual, bona fide possession and not a mere scrambling possession taken for the purpose of compelling the opposing party to institute a suit to determine the title or right to possession of the land in dispute and unless the court is satisfied from the evidence that plaintiff was in the real, exclusive, visible, actual and bona fide possession of the land at the time of the alleged unlawful entry complained of, then the finding and judgment must be in favor of defendant. Third, that if the court sitting as a jury found from the evidence that at the time of the alleged unlawful entry on the land described in the complaint, one John Brennan, as a tenant of plaintiff, was in possession of the land, she cannot recover. Before offering these declarations of law defendant asked for a declaration that under the pleadings and evidence plaintiff could not recover and the finding and judgment must be in favor of defendant. The court refused this, defendant duly saving exception. Plaintiff asked no declarations of law and none were given by the court of its own motion.

In the brief of counsel for appellant it is stated that the court filed a written opinion in the case from which counsel quotes. No such written opinion is in the abstract of the record and it is not before us in such shape that we can notice it. The court rendered judgment in favor of plaintiff and against defendant, and finding defendant guilty as charged in the complaint and assessing the damages at one cent and the value of the monthly rents and profits at one cent, ordered restitution of possession and judgment for double damages and for costs. Filing a motion for new trial and excepting to that being overruled, defendant has duly perfected his appeal to this court.

At the trial of the cause each of the parties introduced plats of surveys that had been made by different surveyors and the witnesses in testifying frequently referred to these plats, but the reference to them is so much by pointing out places on them that it is very difficult to follow the testimony as to the different locations concerning which the witnesses were testifying. That, however, is not so material as we think we have been able to gather an intelligible idea of the general trend of the testimony. Two sons-in-law of plaintiff and her late husband, a Mr. Brennan and a Mr. Pearia had been tenants of Mr....