Sessinghaus v. Knoche

• Decision Date: 06 April 1909
• Citation: 118 S.W. 104,137 Mo. App. 323
• Parties: SESSINGHAUS v. KNOCHE.
• Court: Missouri Court of Appeals

118 S.W. 104

137 Mo. App. 323

SESSINGHAUS v. KNOCHE.

St. Louis Court of Appeals. Missouri.

April 6, 1909.

1. LANDLORD AND TENANT (§ 116)—"TENANCY FROM MONTH TO MONTH"—NOTICE OF INTENTION TO TERMINATE—NECESSITY FOR.

Under Rev. St. 1899, § 4110 (Ann. St. 1906, p. 2234), declaring an agreement for the occupation of a house or other building in a city not made in writing to be a "tenancy from month to month," and providing that either party may terminate the same on one month's notice of intention to do so, a tenant from month to month who vacates without giving one month's notice is liable for the rent for the succeeding month.

2. TRIAL (§ 199)—INSTRUCTIONS—LEGAL EFFECT OF FACTS.

There is no error in the court declaring the legal effect of uncontroverted facts.

3. APPEAL AND ERROR (§ 1066) — REVIEW — HARMLESS ERROR—INSTRUCTIONS.

As under Rev. St. 1899, § 4123 (Ann. St. 1906, p. 2239), it is essential in attachment proceedings for rent that the jury find defendant liable for the rent, the mere fact that the court referred in its instruction to the rent for the month following the vacation of the premises was not prejudicial error as submitting a question touching the merits of the cause of action, and not simply the grounds of attachment, where it conclusively appears that the only rent owed by defendant was for that month, and that it accrued because of defendant's failure to terminate the tenancy by giving the statutory notice, though generally speaking it would be well for the court to instruct the jury to find whether the rent was due within one year after the institution of the suit.

4. JUDGMENT (§ 655) — CONCLUSIVENESS — JUDGMENT ON PLEA IN ABATEMENT.

An investigation of the matter of rent and the tenant's liability therefor on a plea in abatement to an attachment for rent is not res judicata of such matters on the subsequent trial of the principal cause on the merits.

5. LANDLORD AND TENANT (§ 229)—ATTACHMENT FOR RENT—DEMAND—NECESSITY FOR.

Under Rev. St. 1899, § 4123 (Ann. St. 1906, p. 2239), authorizing an attachment for rent when due and unpaid after demand, and providing that, if the tenant is absent from the premises, demand may be made on the person occupying the same, the fact that the landlord called at the premises with the intention of demanding the rent and found them wholly unoccupied, is not equivalent to a demand on the tenant, or, in his absence, on the person occupying the premises, and is insufficient to render the mere default in payment a ground for attachment.

6. APPEAL AND ERROR (§ 854) — REVIEW — HARMLESS ERROR — ATTACHMENT PROCEEDINGS.

A verdict sustaining an attachment on each ground alleged should be upheld, though error interposed as to one ground, where the other grounds are sustained by the evidence, and were properly submitted.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Attachment proceedings for rent by Bertha C. Sessinghaus against Theodore C. Knoche. There was a verdict for plaintiff, and, from an order setting the same aside and granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

See, also, 127 Mo. App. 300, 105 S. W. 283.

H. H. Oberschelp, for appellant. B. R. Brewer, for respondent.

NORTONI, J.

This is a suit in attachment for rent. The case comes here on plaintiff's appeal. It appears the plaintiff recovered in the circuit court; that is, the jury found a verdict affirming all of the grounds for attachment alleged in the affidavit. Upon hearing the motion for new trial, however, the court set this verdict aside for the reason it was of the opinion there was error in the instructions given at the instance of the plaintiff. From this order setting aside the verdict of the jury, plaintiff prosecutes the appeal.

It appears that by an oral agreement plaintiff let a hotel building in the city of St. Louis to the defendant at the agreed rental of $100 per month, to be paid on the 1st day of each month. The defendant occupied the same and paid rent for a time, and finally, on the 20th day of December, vacated the premises, and removed his property therefrom without having terminated his tenancy by giving 30 days' notice as required by the statute. The installment of rent due on the 1st day of January thereafter not having been paid, plaintiff instituted this attachment suit on January 5th for the $100 rent due January 1st for that month. It conclusively appears that the rent for January was due and unpaid at the time of the institution of the suit, and that the plaintiff, having called at the premises to make demand therefor, was unable to do so for the reason the premises were vacant and unoccupied.

There are several grounds of attachment set forth in the affidavit, only two of which are material, however, at the present time. These are the fourth and fifth. The fourth ground for attachment alleges that the defendant was liable to plaintiff for the rent for the month of January for the premises mentioned, whether then due or not, and that defendant had removed his property from said rented premises within 30 days previous to January 5th. The fifth ground alleged is that the said rent was due and unpaid; that said defendant at the time, January 5th, was absent from said premises; that plaintiff's agent had visited the said premises to demand the rent due, and found said premises vacant and no one occupying the same. The court instructed the jury on all of the grounds for the attachment alleged in the affidavit. What directions were therein given touching the grounds of attachment other than the fourth and fifth are immaterial here. The instructions in that respect were entirely proper. The court set the verdict aside, however, for the reason that in its opinion it had trespassed upon the merits of the controversy in the instruction submitting the fourth and fifth grounds of attachment. Touching these grounds, the court instructed that if the jury found from the evidence, fourth, that the defendant was liable to plaintiff for the rent for the month of January for the premises mentioned in the evidence, whether then due or not, and that defendant had removed his property from said rented premises within 30 days previous to said January 5th, then their verdict should be for the plaintiff; and, fifth, that if the jury found from the evidence said rent was due and unpaid, that said defendant, at the time the suit was brought, January 5th, was absent from said premises, that plaintiff's agent had visited said premises to demand said rent then due, and found the premises vacant and no one occupying the same, the jury should find for the plaintiff on that ground. In its instruction No. 2 the court directed that the jury were not to determine, and that its decision should in no wise affect, the question whether or not plaintiff is entitled to recover from defendant the rent for the month of January, but that the matter submitted to the jury was solely whether any one or more of the reasons alleged by plaintiff as grounds for bringing suit by attachment were true. By plaintiff's instruction No. 5, the court directed the jury that the evidence showed the tenancy was from month to month, and that the only way defendant could terminate the tenancy and end his liability for rent was to give the plaintiff or her agent written notice of his intention to terminate the tenancy 30 days previous to the time the month expired.

The court assigned the following reasons for setting aside the verdict: First, that the first...