Tissier v. Hill

• Decision Date: 28 November 1882
• Parties: A. N. F. TISSIER, Respondent, v. BRITTON A. HILL, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 36

A. N. F. TISSIER, Respondent,

v.BRITTON A. HILL, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 28, 1882.

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

Affirmed.R. E. COLLINS, for the appellant, cited: Dothage v. Stuart, 35 Mo. 251; Fenwick v. Gill, 38 Mo. 510; Russell v. De france, 39 Mo. 508; Smith v. Phelps, 63 Mo. 585; Malone v. Stretch, 69 Mo. 25.

C. E. PEARCE, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

Tissier commenced ejectment against Hill and others, to obtain possession of a lot on Poplar Street, St. Louis. The suit was dismissed as to the other defendants, and there was a finding and judgment for plaintiff. The damages were assessed at $1,500, and the monthly rents and profits were found to be $20, and the judgment was, that plaintiff recover of defendant Hill the possession of the premises described in the petition, and also the damages and monthly value. From this judgment there was no appeal, and execution was issued in the usual form, at a subsequent term. After the rendition of the judgment in ejectment, and at the same term, Hill, claiming to have erected valuable improvements on the premises in question without notice of plaintiff's title, commenced proceedings under the statute to restrain Tissier from executing any writ of possession under his judgment until the value of the improvements should be ascertained, and asking that the improvements be appraised, and that, on payment of their value, the title to the improvements be vested in the party entitled under the statute.

On May 20, 1881, the court ordered that, on Hill's filing a bond with a penalty of $500, Tissier be enjoined from enforcing, or in any manner proceeding with, his cause. After the pleadings were all in, in the injunction proceeding, the restraining order was modified by the court, on motion to vacate the order theretofore made. The modified order was, that Tissier be “restrained only from proceeding under the judgment rendered in the cause number 55,578 of this court, to dispossess plaintiff of the premises in said judgment described, until the further order of this court.” Hill was also required to file a new bond in the penal sum of $1,500. The new bond was filed. Hill then moved to vacate the amended order of injunction so that the same should read that Tissier and the sheriff, etc., be enjoined from taking possession of the premises “until the value of the improvements erected thereon by plaintiff in this cause be ascertained, and until the further order of this court, and that the said plaintiff execute and file herein a new bond conditioned according to law, in the penal sum of $1,500.” This motion was overruled.

Tissier indorsed upon the execution issued upon his judgment, a direction to the sheriff not to evict Hill, but to proceed to collect the money judgment only.

A motion to quash this execution was made by Hill, and on hearing was overruled by the court. It is from this judgment that Hill appeals. On the hearing, the record and proceedings, including all motions, orders, and bills of exceptions in the injunction proceedings of Hill v. Tissier, were introduced in evidence.

The statute provides that, if plaintiff prevail in ejectment, and it appears that his right to possession is unexpired, the jury shall find the monthly value of the rents and profits; in such case, judgment shall be for recovery of the premises, the damages assessed and the accruing rents and profits at the rate found, from the date of the verdict until possession is delivered to plaintiff; that when the judgment is both for recovery of premises and of damages, plaintiff may have a writ of possession, which shall command the officer to deliver to plaintiff possession of the premises, and shall also command him to levy and collect the damages and costs, as in executions on judgments in other civil actions; that...