Roberts v. Lynch

• Decision Date: 13 May 1884
• Citation: 15 Mo.App. 456
• Parties: JOHN ROBERTS ET AL., Respondents, v. JOHN LYNCH, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 456

JOHN ROBERTS ET AL., Respondents,

v.JOHN LYNCH, Appellant.

St. Louis Court of Appeals, Missouri.

May 13, 1884.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

FRED WISLIZENUS, for the appellant: There was no evidence of dispossession.-- Thompson v. Sornberger, 59 Ill. 329. The description of the premises was insufficient.-- Clark v. Gage, 19 Mich. 515; Orme v. King, 60 Ga. 524; Lammer v. Busse, 70 Mo. 465. There was no proof of an entry within the boundary lines described in the affidavit.-- Cummins v. Scott, 20 Cal. 84. Statements of opinion as to what constitutes a boundary line are inadmissible.-- Blumenthal v. Roll, 24 Mo. 116; Schultz v. Lindell, 30 Mo. 310. It was error to render judgment against the surety on the appeal bond.-- Hulett v. Nugent, 71 Mo. 131.

H. M. WILCOX, for the respondent: Great strictness and accuracy of description is not essential in forcible entry and detainer.-- Silvey v. Summer et al., 61 Mo. 253; Walker v. Harper, 33 Mo. 592; Harvie v. Turner, 46 Mo. 444. A complaint originally filed before a justice may be amended in the circuit court.-- Allen v. McMonagle, 77 Mo. 478; Webb v. Robinson, 74 Mo. 380.

LEWIS, P. J., delivered the opinion of the court.

This is an action of forcible entry and detainer. It developed at the trial, though it does not appear from the complaint filed with the justice, that the plaintiffs are husband and wife, and that their alleged right of possession is under a deed to the wife, of the lot in question, for her separate use. Verdict and judgment were for the plaintiffs.

The original and amended complaints are objected to, as incongruous and unintelligible. Singular and plural pronouns are indiscriminately used to indicate the complaining party, and the language is otherwise slovenly and ungrammatical. But its real meaning appears on the face of the complaint, and no other could be mistaken for it. In all these particulars, it will hardly suffer by comparison with many other pleadings, and even judicial writings, which have escaped fatal criticism.

The court permitted the plaintiffs, during the trial, to amend their description of the property in controversy. The amendment involved no departure from the original description, and no change in the cause of action. It simply made the boundaries more definite, wherein there might be a doubt of their intended location. It is not pretended that any surprise or other disadvantage accrued to the defendants, and we can not perceive that the amendment was erroneously allowed.

The plaintiffs' lot has a front of twenty-five feet on the north side of Caroline Street, and a depth northwardly of one hundred and twenty-five feet. The defendant owns a lot adjoining this on the east, and having the same depth. He built a house on this lot, occupying a depth from the front northwardly of fifty-five feet. It is charged that, in so doing, he placed his building six and one-half inches over the plaintiffs' line.

William H. Cozzens, a surveyor, holding in his hand a plat of his survey of the plaintiffs' lot, was permitted, against the defendant's objections, to testify as follows: “Question. Can you state from that evidence where the eastern boundary of said lot 22 is situated, with reference to the fence about which Mrs. Roberts testified? Answer. That fence is precisely on the eastern boundary line of lot 22.” He further answered. “From my plat, and knowledge of the ground, I testify that the land described in the amended complaint lies wholly within, that is, to the Roberts' side of that fence.” This testimony ought to have been excluded. It made of Mr. Cozzens a juror instead of a witness. He...