Quinnett v. Washington

• Decision Date: 31 March 1846
• Citation: 10 Mo. 53
• Parties: QUINNETT v. WASHINGTON.
• Court: Missouri Supreme Court

10 Mo. 53

QUINNETT

v.WASHINGTON.

Supreme Court of Missouri.

March Term, 1846.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

WOODRUFF & FIELD, for Plaintiff. 1. That by the common law the plaintiff below was not entitled to recover single damages, because the payment was made upon process provided by law. 1 Leigh's N. P. Cases, 64, and cases cited. 2. That by the statute the plaintiff below was not entitled to recover, under the evidence given in the case: 1st. Because the section which gives the penalty, does not extend to the case of proceedings by warrant like the present, but in its terms applies only to a claim on execution. See statutes of 1842-3, p. 247, § 7, giving penalty only in case of proceedings “under foregoing provisions.” 2nd. Because the remedy by that section is given only in case of excess of rent claimed and received. In the present case no excess of rent was proved or pretended. 3rd. Because the statute remedy is given only to the tenant proceeded against. In the case at bar, the proof is, that Ainsworth and Allen were the tenants, and against them alone, the warrant issued. As the statute is penal, and cannot be extended beyond its terms, and certainly not to the case of the plaintiff below who claimed to be a mere stranger to the proceedings. On the two general grounds mentioned above, the instruction asked by the defendant below rests, and if they are sustained, the instruction was improperly refused. 3. The account filed with the justice is to be regarded as a declaration in two counts--the one at common law, the other under the statute. As the verdict was general, the court committed plain error in giving judgment for double damages. Lowe & Forsythe v. Harryman, 8 Mo. R. 352.

PRIMM & TAYLOR, for Defendant. 1. That the defendant in error was the tenant of the plaintiff in error, at the time the levy was made under the warrant, and if this proposition is true, then this action is well brought. Session acts of 1842 and 1843, title Landlords, p. 247, § 7. 2. That the defendant in error was such tenant is beyond doubt, as the evidence shows that fact, and the finding of the jury sanctions the same. 3. The instruction asked for by plaintiff in error, although good law, was properly refused, as it was declaratory of an abstract principle of law, that the evidence did not warrant, and was not sufficiently broad in its terms. 1 Leigh's N. P. 64; 6 Mo. R. 6. 4. The whole statute is to be taken in pari materia, and the first, seventh and ninth sections of said act construed in that sense, gives the defendant in error, this action. 5. The ninth section contemplates that the warrant shall issue to an officer commanding him to “distrain for rent any property subject to lien for rent,” and not against the person, and does not even require that the tenant shall be summoned to appear before the justice; so that if the defendant in error was in fact the tenant, and an excess of rent was collected by virtue of the provisions of said law, then the judgment is correct--the whole proceeding being in rem and not in personam. 6. The finding of the jury is in accordance with the facts, and the court did not err in doubling the damages, for the statute expressly gives to the plaintiff double damages, and the court was charged with that duty. 1 Mo. R. 201; 4 Mo. R. 564. 7. The court did not err in overruling the motion in arrest of judgment, for the defect, if any, is cured by the statute. Rev. Code 1845, 8th and 9th divisions of §§ 7, 8. 8. That admitting for the argument, that the statute contemplates a case different from the one made out by the defendant in error, and that money obtained by compulsion of legal process, i. e. judgment in a court of justice cannot in general be recovered back, yet there must be bona fides on the part of the person receiving the money, which was not the case here, and in the absence of such good faith the action will lie, and if so, and the defendant in error has recovered too much damages, this court will enter up a remittitur. As to the action being maintained, see 1 Leigh's N. P., 64, and the authorities cited. As to the remittitur, see Rev, Code, 468-9, and 4 Mo. R. 423.

SCOTT, J.

This was a proceeding under the act of Assembly entitled, “An Act concerning Landlords and Tenants in St. Louis County,” approved February 25th, 1843. Session acts, 247. Under the 9th section of this act a distress warrant was sued out by Quinnett against Rensler Ainsworth and Jediah Allen, to recover the sum of $563 due for rent. The officer was directed by Quinnett, out of the goods of Washington, who was alleged to be a sub-tenant of Ainsworth & Allen, to make the sum of $32 90, which was said to be the amount due by Washington as sub-tenant. His goods were accordingly distrained, and he paid the sum of $32 90 to regain possession of them. Washington denied that he was sub-tenant of Ainsworth & Allen, but claimed to hold the premises he occupied...