Reinker v. Wesche

• Decision Date: 26 May 1938
• Docket Number: No. 34967.,34967.
• Citation: 117 S.W.2d 334
• Parties: REINKER et al. v. WESCHE et ux.
• Court: Missouri Supreme Court

117 S.W.2d 334

REINKER et al. v. WESCHE et ux.

No. 34967.

Supreme Court of Missouri, Division No. 1.

May 26, 1938.

Appeal from Circuit Court, St. Louis County, Division No. 3; Fred E. Mueller, Judge.

Action by John F. Reinker and others against Adolph Wesche and wife to recover rented premises because of nonpayment of rent. From an adverse decree, the defendants appeal.

Affirmed.

A. G. Schumacher, of Clayton, for appellants.

C. L. Shotwell, of Ballwin, for respondents.

HYDE, Commissioner.

This case, recently reassigned to the writer, was commenced in a Justice of the Peace Court in St. Louis County as a proceeding by plaintiffs, as landlords, to recover possession of premises from their tenant, defendant Adolph Wesche, because of non-payment of rent. Both defendants filed a plea of title to real estate and the cause was certified to the circuit court, as required by secton 2233, R.S.1929, Mo.St. Ann. § 2233, p. 2405. The circuit court tried the case and entered a decree for plaintiffs adjudging that they were the owners of the land in fee simple; that they should have judgment for $103.80 for delinquent rent; and that they should recover possession of the premises from defendants. Defendants have appealed from this decree.

Defendants bring up only the record proper, except for a term bill of exceptions as to one matter hereinafter mentioned. Plaintiff's statement alleged: "That by lease dated the 20th day of May, 1934, they leased and let to the defendant, Adolph Wesche, the following described real estate * * * (describing property). That said real estate was rented to said defendant, Adolph Wesche, for the sum of eighteen dollars ($18.00) per month, payable monthly in advance; that said defendant paid the rental on said premises on the 20th day of May, 1934, to the 20th day of July, 1934, and that said defendant has failed or refused to pay the rent from the 20th day of July, 1934, to the 20th day of October, 1934, at the rate of eighteen dollars ($18.00) per month, making a total of fifty-four dollars ($54.00), which is now past due and payable." Defendants' plea of title stated that in June, 1930, they owned the land in question; that they borrowed $2,500.00 from the St. Louis County School fund for which they gave a bond and mortgage with plaintiffs J. H. W. Rasch and John R. Reinker as sureties; that they also made a second mortgage to Herman Wesche and wife for $1,435.00; that in August, 1933, they made a quit-claim deed to these Wesches: "that said quit-claim deed was to be equitable mortgage and merge in said second deed of trust"; that Herman Wesche and wife conveyed the land to plaintiffs in violation of their redemption agreement; and that plaintiffs and these Wesches conspired together to cheat and defraud defendants out of the property and prevent its redemption. Defendants further alleged that they had made arrangements to refinance the property through the Home Owners Loan Corporation but were fraudulently induced to sign the lease, alleged in plaintiffs' statement, upon false and fraudulent promises of plaintiffs to accept bonds of the Home Owners Loan Corporation for the amount of the mortgages and reconvey the property to defendants. Defendants sought to have the lease between them and plaintiffs set aside and also sought to have set aside their deed to the Wesches and the Wesches' deed to plaintiffs. Defendants, however, made no tender or offer to pay anything. Plaintiffs' reply was a general denial.

Defendants contend that plaintiffs' amended statement (filed in circuit court) was a departure from the original statement. This was stated as one ground of their demurrer, but it is not a matter reached by demurrer. Beattie Mfg. Co. v. Gerardi, 166 Mo. 142, 65 S.W. 1035; Philip Gruner & Bros. Lumber Co. v. Hartshorn-Barber R. & B. Co., 171 Mo.App. 614, 154 S.W. 846. Moreover, this question cannot be considered here, because the original statement is neither preserved in a trial bill of exceptions nor a term bill of exceptions. Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824; Boyd v. St. Louis Brewing Ass'n, 318 Mo. 1206, 5 S.W.2d 46. An abandoned petition is not part of the record proper and can only become a part of the record on appeal by being preserved in a bill of exceptions. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660, and cases cited. Defendants also contend that plaintiffs stated no cause of action and that their demurrer should have been sustained on that ground. In addition to the allegations herein set out, the statement contained the allegation that defendants still occupied the premises and had not paid rent due after demand therefor. It was a sufficient statement, under the landlord and tenant statutes, to show plaintiffs...