Stump v. Hornback

• Decision Date: 22 December 1891
• Citation: 18 S.W. 37,109 Mo. 272
• Parties: STUMP et al. v. HORNBACK et al.
• Court: Missouri Supreme Court

18 S.W. 37

109 Mo. 272

STUMP et al. v. HORNBACK et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

APPEAL — MANDATE AND SECOND APPEAL — EJECTMENT — RECOVERY OF RENTS AND PROFITS — INJUNCTION.

1. Where a cause has been remanded by the supreme court with directions to enter a particular judgment, the only question to be considered on an appeal from the judgment entered thereon by the court below is whether such judgment is in conformity to the mandate.

2. Under Rev. St. §§ 2252-2255, providing that a judgment in ejectment for plaintiffs should include the accruing rents and profits until possession is delivered, such a judgment awarded plaintiffs a certain sum per month till possession should be delivered to them. In a subsequent action brought by the defendants in ejectment for the value of improvements put upon the land by them, an injunction was granted staying execution on the judgment in ejectment, and was finally made perpetual, unless plaintiffs in ejectment should pay the value of the improvements. Held, that the injunction did not prevent the accruing thereafter of the monthly rents and profits under the judgments in ejectment.

Appeal from circuit court, St. Charles county; W. W. EDWARDS, Judge.

Action by Maria C. Stump and another against Phœbe J. Hornback and another to recover the value of improvements made by plaintiffs upon certain lands, for the possession of which a judgment in ejectment had been rendered against them in favor of defendants in this action. Judgment for plaintiffs. Defendants appeal. Reversed. See former report, 6 S. W. Rep. 356.

H. C. Lackland and C. W. Wilson, for appellants. T. F. McDearmon, for respondents.

MACFARLANE, J.

This is a proceeding by plaintiffs, who were unsuccessful defendants in an ejectment suit, to recover the value of improvements made by them upon the land, for the possession of which a judgment was rendered against them in favor of these defendants. In the ejectment suit judgment was rendered in favor of defendants in this suit, and against the plaintiffs, for the possession of the land, and for $411.30 damages, "together with twenty dollars per month from this date till possession of said premises be delivered to plaintiffs, and costs." This judgment was dated September 13, 1881. Plaintiffs herein commenced this proceeding September 27, 1881, and on the same day the court granted a temporary injunction prohibiting defendants herein from enforcing their judgment for possession until this suit should be finally disposed of. The case was tried upon the petition and answer in September, 1882, and the value of the improvements assessed by the jury at $1,960, and the value of the lands aside from the improvements at $1,462.05. The court refused to allow the judgment recovered by defendants for damages and accrued rents and profits in the ejectment suit to be set off against the value of the improvements so found, and entered a decree divesting defendants of their title, and vesting it in the plaintiffs on payment of the estimated value of the land, aside from the improvements, — $1,462.05, — into court for the benefit of defendants. From this judgment defendants appealed to the St. Louis court of appeals, where the judgment was affirmed, and defendants then appealed to this court, where the judgment was reversed, and is reported in 94 Mo. 27, and 6 S. W. Rep. 356. After the case had been remanded to the circuit court of St. Charles county, both parties filed motions to have the judgment entered in accordance with the judgment of the supreme court. On the hearing of these motions it was admitted that plaintiffs were, and since the rendition of the judgment in ejectment suit had continued, in the possession of the land; that plaintiffs on the 12th of May, 1884, paid to defendants the judgment for $411.30 damages, but that no part of the rents and profits of the land accruing since the judgment had been paid. It was also agreed that the temporary injunction granted at the commencement of the proceeding had continued, and was then in force. The court thereupon entered up a decree awarding to plaintiffs the value of the improvements as assessed by the jury in September, 1882, to-wit, $1,960. The injunction was made perpetual unless this sum was paid by defendants on or before December 1, 1888; in the event it was paid then, the injunction to be dissolved. In this decree the court made the following finding: "And the court doth further find the defendants herein were not entitled to the possession of the land in controversy after the grant of the temporary injunction herein, and are not entitled to the possession thereof, and that therefore no monthly rents and profits have accrued to them thereon." From this judgment defendants appealed.

This court, when the case was before it on a former appeal, (94 Mo. 34 and 6 S. W. Rep. 356,) made the following order for the government of the circuit court in finally determining the case: "And appellants [defendants] having neglected or refused to exercise their privilege of election to take the value of the land aside from the improvements, the injunction will be made perpetual, and appellants forever enjoined from taking possession of said lands under said judgment, or having execution therefor, unless on or before a reasonable day, to be fixed by said court in its decree, they pay the respondents, or into the court for their use, the value of the improvements as found by the verdict of the jury, against which amount, however, is to be set off and deducted so much of appellants' judgment for rents and profits in the action of ejectment as remains unsatisfied; the injunction to be dissolved on such payment." When this cause was remanded to the circuit court with directions to enter a particular judgment, that court had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters had become res adjudicata, and could not be reopened. Hurck v. Erskine, 50 Mo. 116; Shroyer v. Nickell, 67 Mo. 589; Chouteau v. Allen, 74 Mo. 59; State v. Givan, 75 Mo. 517. No question, then, can be properly considered on this appeal, except whether the judgment entered by the circuit court was in conformity to the mandate of this court. This depends upon whether there was a "judgment for rents and profits" in the ejectment suit which remained...