St. Louis Agric. & Mech. Ass'n v. Reinecke

• Decision Date: 06 April 1886
• Citation: 21 Mo.App. 478
• Parties: ST. LOUIS AGRICULTURAL & MECHANICAL ASSOCIATION, Respondent, v. J. P. REINECKE ET AL., Appellants.
• Court: Missouri Court of Appeals

21 Mo.App. 478

ST. LOUIS AGRICULTURAL & MECHANICAL ASSOCIATION, Respondent,

v.J. P. REINECKE ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1886.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Affirmed.

MUENCH & CLINE, for the appellant: The appellant was entitled to a change of venue. Voigt v. Avery, 14 Mo. App. 48; Woodhull v. Kelly, 10 Bradw. 455; Colvin v. Six, 79 Mo. 199; The state ex rel. v. Six, 80 Mo. 61. The admission of the plaintiff's deeds was error. Taylor's L. & T., sects 774, 777; Seifert v. Withington, 63 Mo. 577. “A mere trespasser can not, by the very act of trespass, immediately, and without acquiescence on the part of the land owner, become possessed of the land upon which he has trespassed, and which he tortiously holds, and he may be expelled by main force, unless the owner, through laches, allows trespass to ripen into possession.” Addison on Torts (Dudley & Baylies' Ed.) 330; Dyer v. Baumeister, 14 Mo. App. 575; Dyer v. Reitz, 14 Mo. App. 45, and cases there cited. One who wrongfully, and without color of title, intrudes upon the land of another, will be confined as to his possession to the part or portions actually occupied. Mylar v. Hughes, 60 Mo. 105; Harris v. Turner, 46 Mo. 438; Powell v. Davis, 54 Mo. 315, 318.

FRED. WISLIZENUS and E. C. TITTMANN, for the respondent: “If the plaintiff was in peaceable possession, whether rightfully or wrongfully, the defendants had no right to forcibly dispossess him * * * no superior right of the defendant could justify them in ousting him by force.” Harris v. Turner, 46 Mo. 439; King's Adm'r v. St. Louis Gas Light Co., 34 Mo. 34. Frequent walking over an unenclosed lot in a prairie is no visible mark of possession; nor is the contemplation of building without any act further than the discussion of the project. Hopkins v. Buck, 1 A. K. March, 111. The court was right in receiving plaintiff's deed in evidence, and also right in excluding defendant's assignment of the Conway lease. Huftalin v. Misner, 70 Ill. 205.

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

This is an action of unlawful detainer. The premises in controversy were two lots numbered eleven and twelve, being part of a larger area on which the plaintiff, in March, 1885, was proceeding to build a number of stables to be used in connection with its race track. On Sunday, April 12, 1885, the defendants took possession of the two lots, by building a wire fence around them. On appeal by the defendants from a justice of the peace, the plaintiff recovered judgment in the circuit court.

Before the justice, the defendants made application in the general statutory form for a change of venue. The justice denied the application. In the circuit court, the defendants insisted on a dismissal of the cause, for want of jurisdiction in the justice, after the filing of the application for a change of venue. The dismissal was refused, and the same point is presented here as a ground of reversal, with the additional contention that it was the duty of the circuit court to reverse the judgment of the justice, for his error in refusing the change of venue. There is nothing tenable in either view of the defendants' complaint. When the case reached the circuit court, that tribunal could only “proceed to hear, try, and determine the same anew, as if it had originated in such court, without regarding any error, defect, or informality in the proceedings of the justice.” Rev. Stat., sect. 2491. Suppose it to be true that the justice committed error in refusing the change of venue. Yet, how could the circuit court take any action upon that error, without a disobedience of the statute? The trial de novo in the circuit court furnished a complete substitute for all the advantages that the defendants could have gained by the removal to another justice. We are referred to Colvin v. Six, 79 Mo. 199, and The State v. Six, 80 Mo. 61. The cases are not in point. They show that, “a judgment entered by a justice of the peace after a change of venue has been applied for in due form, on the ground of prejudice on his part, is erroneous;” but they do not show that his error may be made available for any purpose in the circuit court on appeal. They do not show that the justice's error avoids his jurisdiction. On the contrary, they declare that his jurisdiction remains intact, until an actual order made for a change of venue; so that his judgment can not be attacked on that ground in a collateral proceeding. There was, then, no failure of jurisdiction in the present case, and no reason why the circuit court should have dismissed the cause.

The plaintiff introduced in evidence a deed from the board of public schools, stating at the time that it was not “for the purpose of establishing title, or color of title, but solely for the purpose of defining the boundaries of the property and identifying the premises to which its possession, as hereinafter shown, applied.” Rev. Stat., sect. 2449. Afterwards, the defendants offered an instrument of transfer from Hattie Conway and her husband to defendant Reinecke, conveying all their interest in a leasehold of the lots in controversy, having a term of ten years from June 15, 1884, which leasehold was recited in the plaintiff's deed from the board of public schools. This transfer bore date October 17,...