Todd v. Fitzpatrick

• Decision Date: 27 February 1924
• Docket Number: No. 3516.,3516.
• Citation: 259 S.W. 490
• Parties: TODD et at. v. FITZPATRICK et al.
• Court: Missouri Court of Appeals

259 S.W. 490

TODD et at. v. FITZPATRICK et al.

No. 3516.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by J. F. Todd and others against A. Fitzpatrick and others. Judgment for defendants, and plaintiffs appeal. Affirmed on condition remittitur be filed, otherwise reversed and remanded.

George V. Farris, of Joplin, for appellants. Frank L. Forlow, of Webb City, and Howard Gray, of Carthage, for respondents.

BRADLEY, J.

This cause is in replevin, and was tried before the court without a jury. Judgment went for defendants, and plaintiffs appealed.

Defendants were tenants of one Hannum on a farm in Jasper county. Their term expired March 1, 1919. In December, 1918, Hannum sold the farm to plaintiffs. Defendants, claiming under a verbal agreement with Hannum, refused to surrender possession." Plaintiffs commenced unlawful detainer, and recovered, but defendants appealed to this court. We affirmed the judgment in unlawful detainer. See Todd v. Fitzpatrick, 222 S. W. 888. Defendants continued in possession pending the appeal, and cultivated a crop on the premises. The case at bar is to recover some oats grown on said premises pending the unlawful detainer appeal. These oats were cut, and were in stacks when taken by plaintiff under the writ.

While it is not so stated, it would appear from the record that the trial court found against plaintiffs on the theory that replevin would not lie. The jury in the unlawful detainer case, as appears from the records of that case introduced in evidence. did not allow any damages, and found that "the value of the monthly rents and profits of the said tenements is no dollars." It does not appear what character of bond the defendants in the unlawful detainer suit gave when they appealed to this court, and nothing is said about such bond, or any remedy that plaintiffs might have upon it. The penalty placed upon a tenant wrongfully holding premises pending an appeal in unlawful detainer is that he must pay double the damages assessed, and double the monthly rents and profits until restitution. Section 3012, R. S. 1919. Nelson v. Alporte et al., 161 Mo. App. 605, 143 S. W. 519. This penalty is exclusive, and the offending tenant does not forfeit to the landlord the crops grown on the premises while such appeal is pending. The fact that the jury in the unlawful detainer case did not award any damages, and made no finding on the value of the rents and profits, cannot change the law and vest in plaintiffs the right to maintain replevin for crops grown pending an appeal.. If plaintiffs were not satisfied with the verdict and judgment in the unlawful detainer case on the question of damages and rents and profits, they should have taken steps to rectify. It is our conclusion that replevin will not lie. McAllister. v. Lawler, 32 Mo. App. 91; Adams v. Leip, 71 Mo. 597. We do not think that ...