Walter Commission Co. v. Gilleland & Hamlin
| Decision Date | 02 March 1903 |
| Citation | 73 S.W. 295,98 Mo.App. 584 |
| Parties | WALTER COMMISSION COMPANY, Respondents, v. GILLELAND & HAMLIN, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Hamner & Hamner and F. W. Gifford for appellants.
(1) The tender of the rent due, together with the costs in the court below, entitled appellants to judgment in their favor. Johnson v. Douglas, 73 Mo. 168. (2) On April 17 1900, respondent in this cause recovered judgment for rent for the sum of $ 68.30 in his landlord and tenant suit; on April 19, 1900, respondent filed an unlawful detainer suit stating under oath that appellants were unlawfully withholding possession of "stall No. 25," city market, claiming again the rent sued for in the landlord and tenant suit, and nine hundred dollars damages, and raised the monthly value of the "stall" to fifty dollars per month. At the time this was done there was only the amount of "rent" due respondent which was tendered in the court below, together with the costs. (3) The court by refusing the declarations asked by appellants virtually say the respondent can have both suits pending in court at the same time, and can recover the rent twice and $ 189.29 more and also double damages for all the time. This court and the Supreme Court has said otherwise. Green v. Von der Ahe, 36 Mo.App. 394; Robbins v. Conley, 47 Mo.App. 502; Pickett v. McCord, 62 Mo.App. 467; Warder v. Henry, 117 Mo. 530; Carson & Rand Co. v. Stern, 127 Mo. 381.
Chas. H. Winston for respondent.
(1) The judgment was not excessive. It is for the rents accrued to, and due at, time of trial and judgment. R. S. 1899, sec. 4133. (2) The statute gives no right to make a tender for the first time after appealing to the circuit court, when the defense was a general denial before the justice. (3) Judgment of the circuit court was right, for it must be for recovery of possession of the premises and the amount of rent accrued and due down to the time of rendering the judgment, and for all costs. R. S. 1899, secs. 4133, 4139, 4071, 4081; Mores v. McCarty, 10 Mo.App. 583; Leahy v. Lubman, 67 Mo.App. 191. (4) Even the rent for the month of March, 1900, must be included in the judgment, because defendants expressly tender it by their amended answer. They are bound by their tender of $ 92 for the rent to March 31, 1900, and interest thereon, and are estopped by their amended answer from denying that that amount is due to that date. Wright v. Butler, 64 Mo. 165; Campbell v. Railroad, 16 Mo.App. 553. (5) This landlord and tenant action ought not to be held in abeyance as prayed in the amended answer. The unlawful detainer action was not begun until this landlord and tenant action had been appealed from the justice, and a long delay of justice made certain herein. Robbins v. Conley, 47 Mo.App. 506; State ex rel. v. Daugherty, 45 Mo. 297; Thompson v. Holden, 117 Mo. 118; Jacobs v. Lewis, 47 Mo. 344.
--This is an action which was brought before a justice of the peace under the landlord and tenant statute to recover possession of the space or stall number twenty-five on the outside of the Kansas City market house, and also the rent due thereon.
The evidence presented by the record before us tends to show us that Kansas City leased the said space to L. S. Walters for the term of one year beginning on the first day of April, 1893. That at the commencement of said term there was no building on said space and that during his tenancy the said city permitted him to construct and erect a building thereon for his own use; that after the expiration of said term he, with the consent of said city, held over and continued in possession of said space and the building thereon as tenant thereof; that while so in possession he transferred said space and building to the plaintiff and placed it in possession thereof; that plaintiff while so in possession of said space and building paying rent to the said city, leased the same to defendants and placed them in possession under said lease, and that defendants after being so put in possession never surrendered the same to plaintiff; that at the time of the commencement of this suit defendants owed the plaintiff $ 68.30 rent, and that plaintiff demanded the same after it became due. The cause was removed by appeal to the circuit court where plaintiff had judgment for $ 421.49, and the defendants appealed.
It may be here stated that twenty-four days after the commencement of this action the plaintiff begun an action of forcible detainer against the defendants for the restitution of the said space and building and the rent then due, with damages, etc. The latter action was pending in the circuit court at the time of the trial of the former. The complaint and other papers filed in the unlawful detainer case were put in evidence by the defendants at the trial of this cause.
The defendants requested the court by an instruction to declare that as there were two suits between the same parties for the same thing, it should not allow the plaintiff to proceed. This request was, we think, properly refused. The grounds upon which courts abate subsequent suits is that they are unnecessary, therefore, vexatious and oppressive. State ex rel. v. Doughtery, 45 Mo. 294; Jacobs v. Lewis, 47 Mo. 344; Thompson v. Holden, 117 Mo. 118, 22 S.W. 905; Warder v. Henry, 117 Mo. 530, 23 S.W. 776; State ex rel. v. Moss, 35 Mo.App. 441. Where two suits are brought at different times between the same parties and for the same thing, that first brought occupies the ground and that subsequently brought will be abated. The rule of lis pendens can have no application in a case like this where it is sought to abate the first suit because of the bringing of a subsequent one, even though such subsequent suit be between the same parties and for the same thing.
The defendants in the circuit court for the first time made...
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