Wolff v. Shinkle

• Decision Date: 12 June 1877
• Citation: 4 Mo.App. 197
• Parties: M. A. WOLFF, ADMINISTRATOR, Respondent, v. CHARLES SHINKLE, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 197

M. A. WOLFF, ADMINISTRATOR, Respondent,

v.CHARLES SHINKLE, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 12, 1877.

In an action, under the Landlord and Tenant Act, to recover possession, where the affidavit was filed April 2, 1875, and stated that $180 was due for rent, from October 1, 1873, to October 1, 1874, held, that the affidavit showed either that the whole amount of rent due at the time of filing the complaint was not stated, and had not been demanded, or else that the rent for the year immediately preceding the filing of the complaint had been paid; and that, in either case, the affidavit was bad.

APPEAL from St. Louis Circuit Court.

Reversed and dismissed.

H. B. O'REILLY, for appellant, cited: Cook v. Decker, 63 Mo. 328; Garnhart v. Finney, 40 Mo. 449; Vaughn v. Schocke, 27 Mo. 290.

R. S. MACDONALD, for respondent.

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

This is an action to recover possession of premises, brought before a justice of the peace, under the Landlord and Tenant Act. The complaint is as follows: “Harriet I. N. Merritt, administratrix of the estate of A. S. Merritt, deceased,” * * * “states that Charles Shinkle rented, and now occupies as the tenant of affiant,” * * * “a two-story brick house,” * * * “which said premises were rented to said Charles Shinkle by the month, payable at the end of each month, at the rate of $30 per month; that the sum of $180 is now due for said rent from October 1, 1873, to April 1, 1874; that the same has been demanded from Mrs. Charles Shinkle, one of the occupants of said premises, and that payment has not been made. Plaintiff therefore asks judgment for her rent and restitution of her premises.” There was a default, and judgment for possession and for $180 debt, for rent, a motion to set aside the judgment by default, and an appeal by the defendant to the Circuit Court. In the Circuit Court the present plaintiff was substituted, and the defendant failing to appear, the judgment of the justice was affirmed. A motion in arrest was made, and this being overruled, the case was appealed to this court.

The appellant makes several objections to the proceedings before the justice and in the Circuit Court, but it is necessary to notice only one. The record shows that the affidavit was filed with the justice, and summons issued, on April 2, 1875. Upon this it is contended that the affidavit is bad, and that the justice had no jurisdiction. As the affidavit states that $180 is due for rent from October 1, 1873, to October 1, 1874, and that the same has been demanded, it is apparent either that the amount of rent due at the time of the filing of the complaint is not stated, and has not been demanded, or else that the rent of the premises for the year immediately preceding the filing of the complaint has been paid by the defendant. It would seem that, in either alternative, the affidavit is bad. By the former statute (Gen. Stat. 1855, pp. 1016, 1017, secs. 33, 35), rent was not recoverable in this proceeding, but the exact amount of rent due was required to be stated, not because it would affect the judgment, but, as was said by Judge Napton in Vaughn v. Locke, 27 Mo. 292, because the tenant is permitted, upon the demand of the sum actually due him, to avoid the suit by paying the...