Williamson v. Adkins
| Decision Date | 18 January 1919 |
| Citation | 208 S.W. 270,203 Mo.App. 173 |
| Parties | J. J. WILLIAMSON, Appellant, v. WM. ADKINS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Premiscot Circuit Court.--Hon. Sterling H. McCarty Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
C. G Shepard for appellant.
Sam J Corbett and Ward & Reeves for respondent.
This is a suit by attachment under the Landlord and Tenant Act, section 7896, Revised Statutes 1909, for the purpose of recovering rent for certain land in Premiscot County which was rented by appellant, Williamson, who was plaintiff, to defendant, William Adkins, respondent, for the crop year of 1914. An affidavit of attachment was filed together with a petition for the recovery of the amount claimed to be due. Defendant filed a plea in abatement, and the cause on the grounds of the attachment was tried by a jury under the instructions of the court which resulted in a verdict for the defendant and a judgment in his favor on the plea in abatement. A trial was subsequently had on the merits and a judgment rendered in plaintiff's favor for $ 354.
The questions involved in this appeal concern the action of the court in the trial of the attachment suit on the plea in abatement, and as the respondent asserts that the affidavit in attachment filed by the plaintiff was fatally defective, and that irrespective of any assigned errors made in the trial of the cause, the judgment was for the right party because of a fatally defective affidavit in attachment. The affidavit is as follows:
"J. J. Williamson, being duly sworn, states that Wm. Adkins, defendant, is justly indebted to this affiant in the sum of $ 600 for rent of the premises in the petition described, and which said sum is now due and payable, and that said defendant intends to remove his property from the leased or rented premises; that defendant is now removing his property from the said leased or rented premises; that defendant has, within thirty days, removed his property from the said leased or rented premises, and that he believes that unless an attachment be issued against the personal property and crops grown upon said premises by defendant, he will lose his rent."
The affidavit is properly signed and sworn to. The return made by the Sheriff shows that he levied upon property of the defendant such as live stock, farm implements and tools, wagons, etc, and that the only property seixed which would fall under the classification of crops was three bushels of corn.
The respondent contends that the appellant, at most, only attempted to state four grounds under section 7896, they being the first, second, third and sixth grounds, and that the first, second and third grounds set out in the affidavit are fatally defective because they do not contain the charge, "so as to endanger, hinder or delay the collection of the rent;" and asserts that under the law as it now stands the first, second and third grounds for attachment under section 7896 must contain an averment that the act of the tenant endangers, hinder or delays the collection of the rent.
Our attention has been directed to the following cases: Chamberlain v. Heard, 22 Mo.App. 416; Scully v. Cox, 75 Mo.App. 563; Morris v. Hammerle, 40 Mo. 489; Haseltine v. Ausherman, 87 Mo.410; Haseltine v. Ausherman, 29 Mo.App. 451; Cleveland v. Crum, 33 Mo.App. 616; Kleun v. Vinyard, 38 Mo. 447; Garroutte v. White, 92 Mo. 237, 4 S.W. 681. It will be noticed on reading these cases that they were all dealing with this statute as it stood in the Revised Statutes of 1879, section 3091, and prior thereto. None of them are discussing the question after the amendment to this statute which was made at the Revision Session of 1889, at which session of the General Assembly an act was introduced and passed revising and amending Chapter 45 of the Revised Statutes of Missouri of 1879, entitled Landlord and Tenant, in which act which was passed section 3091, Revised Statutes 1897, as amended by the Laws of 1883, page 105, was made to read as it appears published in the Revised Statutes of 1889, section 6384, which amended statute has been brought down as it then stood, and is now section 7896 of the Revised Statutes. In this connection, we may add, as a matter of information, that the Session Acts as published of 1889 do not include all of the bills which were revised at that session, as do the Session Acts or 1909; however, in the Second Volume of the Revised Statutes of 1889, pages 2229, 2239, 2231 and 2232 will be found a list of the revised bills of that session and the unrevised bill of that session, and it will be noticed that Chapter 69 is among the revised bills.
We, therefore, find that prior to the Laws of 1889, in order for a landlord to maintain an attachment under the Landlord and Tenant Act, it was necessary under grounds one, two, three four and five, to allege in the affidavit and make proof in the trial that he was endangered, hindered and delayed in the collection of his rent by the act of the tenant. Since the Act of 1889 eliminates from the first, second and third grounds this requirement, so far as removing property is concerned, under grounds one, two and three, the requirement is no longer in such cases.
We are not called upon in this suit to decide whether...
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