Renshaw v. Reynolds

• Decision Date: 25 June 1927
• Docket Number: No. 25550.,25550.
• Parties: RENSHAW v. REYNOLDS.
• Court: Missouri Supreme Court

297 S.W. 374

RENSHAW v. REYNOLDS.

No. 25550.

Supreme Court of Missouri, Division No. 1.

June 25, 1927.

Motion for Rehearing Overruled July 30, 1927.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Suit before justice of the peace by Frank Renshaw against S. D. Reynolds. Judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff, and defendant appeals. Affirmed.

John Schmook, of Springfield, for appellant.

O. T. Hamlin and V. O. Coltrane, both of Springfield, for respondent.

LINDSAY, C.

This suit was brought before a justice of the peace of Greene county under the provisions of sections 6901 and 6903, R. S. 1919, for the possession of certain real estate for nonpayment of rent, and for the rent accrued and unpaid. The plaintiff had judgment for possession and for $60, the amount of the unpaid rent. Defendant gave the bond as provided by section 6909, and was allowed an appeal to the circuit court. In the circuit court defendant demanded that the cause be tried to a jury. This was overruled by the court, and defendant excepted. The cause was heard by the court, and the plaintiff had judgment for possession of the premises and for the sum of $105, the amount of the rent, then accrued and unpaid, and defendant was allowed an appeal to this court. There was a written lease between the parties for the period of one year, and provision therein for the payment of rent monthly at $15 per month. The defendant offered to show that the deed under which plaintiff had claimed title to the leased land had been canceled, and plaintiff's title extinguished by a judgment of the circuit court of Greene county in March, 1923, and that plaintiff had filed no motion for a new trial to set aside said judgment and it became and was final against him, and he was thereby divested of all right, title, and interest in the real estate involved in this suit. Defendant also offered to show that he had paid to plaintiff rent to March 20, 1923, and that after the title of plaintiff to said premises had been extinguished, defendant offered and proposed to the plaintiff that defendant would pay the rent falling due after March 20, 1923, into court, or into the hands of some one to he held until It could be determined to whom the rent accruing after March 20, 1923. was justly due. The court refused these offers, and defendant excepted. The errors assigned are, the refusal of the court to call a jury, and the rejection of the evidence offered by the defendant to show that plaintiff's title to the premises had been extinguished. It was admitted by defendant that he had remained continuously in possession of the premises after March 20,1923, and was in possession at the time of the trial, and there was no claim that after said date he had paid any rent.

The case is here upon appeal by reason of the constitutional question raised by the defendant, and his contention that the refusal of his demand for a jury violated section 28 of Article 2, of the state Constitution, which provides: "The right of trial by jury as heretofore enjoyed shall remain inviolate. * * * The action provided by sections 6901-6903, to be brought and determined before a justice of the peace, appears to be summary in character. Upon appeal to the circuit court, such action is necessarily to be tried de novo. It is an action at law for the recovery of money and of possession of specific real property, and the ground of recovery of both is a breach by the defendant of an express contract to pay a stated rent.

In cases involving the question of the right of a party to demand a jury, this court, referring to the constitutional provision, has sometimes said the provision, whether in the present or in former Constitutions, "merely guaranteed the continuance of the common-law right of trial by jury." Bates v. Comstock Realty Co., 306 Mo. loc. cit. 328, 267 S. W. 644; Hickox v. McKinley, 311 Mo. 241, 278 S. W. 671; Eckrich v. St. Louis Transit Co., 176 Mo. 648, 75 S. W. 755, 62 L. R. A. 911, 98 Am. St. Rep. 517. In other cases, the expression used has been that:

"The status of what must be tried by a jury was fixed by the conditions existing at the time of the adoption of the Constitution." Berry v. Railroad, 223 Mo. 366, 122 S. W. 1043; Kansas City v. Smith, 238 Mo. 333, 141 S. W. 1103.

It is not necessary here to attempt to distinguish the effect of these expressions or to discuss the respective natures of the actions in the cases mentioned. The statute, section 1398, R. S. 1919, governs the determination of the question here at issue. That section provides:

"An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered, as hereinafter provided."

This section antedates both the Constitution of 1875 and that of 1865. It appears in the form quoted in the Revised Statutes of 1855, p. 1261, § 12. If, under the statutory provision, defendant was entitled to demand a jury in the circuit court, there is little or no need at all of discussion of the constitutional provision, or of what constituted the common-law right of trial by jury. The circuit court is a court of record and of general, common-law jurisdiction. Section 1398 is embodied in the Code of Civil Procedure, which has been always understood to refer to and govern the practice and proceedings of courts of record possessing common-law jurisdiction. Section 1398 was evidently framed so as to draw the line between actions at law triable by a jury and suits in equity to be heard by the court. The action triable by jury, an action for the recovery of money "only," meant an action for the recovery of money, and where the demand of the plaintiff could be wholly satisfied by the payment of money, and not one requiring relief equitable in character. Counsel for plaintiff, in support of their contention that the right to demand a jury did not exist in the circuit court, cite State ex rel. v. Allen, 45 Mo. App. 551. In that case the Kansas City Court of Appeals held that in an action of this character before a justice of the peace, not exercising jurisdiction according to the course of the common law, a jury was not authorized because not required by legislative enactment, and issued its writ of prohibition against the justice to prevent him from calling a jury; but, that court after so holding closed its opinion as follows:

"For notwithstanding the statute in question does not provide for a jury trial, yet it does provide, without unreasonable restriction, for an appeal to a court where a jury trial may be had. Section 6400. When such is the case, the Constitution is not only not violated, but the mode and manner of securing the constitutional right is pointed out. City of Marshall v. Standard, 24 Mo. App. 193; 1 Bishop, Crim. Pro. § 893; 1 Dillon, Mun. Corp. § 439."

The Courts of Appeals have several times had under consideration the sections embodying the provisions of section 1380. In Hoyt v. Davis, 21 Mo. App. 235, the plaintiff, a widow, claimed one-half of the personal estate of her deceased husband under the statutes then in force. Upon appeal from the judgment of the probate court, the circuit court appears to have proceeded upon the theory that the case was one in which declarations of law need not be given. The case was heard by the court, and the plaintiff's declarations of law were refused. The Court of Appeals held that the action was triable by a jury in the circuit court, had a jury been demanded, and therefore it was a case where appropriate declarations of law might be required by either party.

In Bradley v. Woerner, 46 Mo. App. 371, the action was one by a widow for the widow's allowance. The issue was whether the petitioner was the widow of the deceased. The petitioner demanded a jury to try that issue. The probate court denied the demand. The Court of Appeals refused the writ of mandamus to compel the probate court to summon a jury upon the ground that section 2131, R. S. 1889, now section 1398, did not apply to the probate court, or other courts of record possessing no common-law jurisdiction. The case of Hoyt v. Davis, supra, was referred to and distinction drawn between the right to demand a jury in the probate court, and the right in the circuit court upon appeal from the judgment of the probate court. This case in the circuit court was triable by a jury, and the court erred in refusing the defendant's demand for a jury.

The defendant next complains of the rejection of the evidence offered by him. This was an offer to show that in a proceeding in the circuit court of Greene county against this plaintiff and a brother of plaintiff and others, brought by two sisters of this plaintiff, a final decree had been rendered canceling the deed made to plaintiff by his late brother, Moses Renshaw, deceased, under which the plaintiff claimed title to the leased land; that plaintiff's only claim of title was under said...