Andrae v. Heinritz

19 Mo. 310 | Mo. | 1854

Gamble, Judge,

delivered the opinion of the court.

1. The complaint filed with the justice in this case charges that, on a certain day, the plaintiff' was entitled to the immediate possession of certain premises (describing them) and so continued entitled until the exhibition of his complaint, and that the defendant unlawfully detained and still unlawfully detains the premises.

The third section of the act concerning forcible entries and detainers, (R. C. p. 512,) gives the remedy for unlawful detainer in two cases. The first is, where a person shall wilfully and without force hold over after the termination of the time for which the premises were demised or let to him or the person under whom he claims. The second is, where a person wrongfully, and without force, by disseisin, shall obtain and continue in possession of any premises, and after demand made in writing for the possession by the person having the legal right to the possession, shall refuse or neglect to quit such possession.

It is obvious that the complaint in the present case, which is for an unlawful detainer, does not contain allegations bringing the case within the statute. It is much like a declaration in an ejectment under our statute, but not at all a compliance with the statute concerning forcible entries and detainers. Whether, then, the plaintiff was properly nonsuited or not, he is not entitled to recover upon his complaint, and therefore, it would be useless to pass upon the questions which arose at the trial. The judgment is, with the concurrence of the other judges, affirmed.