419 S.W.2d 55 | Mo. | 1967
This is an unlawful detainer action by William E. Ball, the assignee-purchaser of a “sale and lease agreement” in which the appellant Kemps (Orla Kemp was in fact the operator and principal in the business) were the lessee-purchasers of a bowling alley in Piedmont. The plaintiff sought to recover delinquent rent of $11,215.84 which doubled under the statute (RSMo 1959, § 534.330, V.A.M.S.; Bierkenkamp v. Bierkenkamp, 88 Mo.App. 445) would confer appellate jurisdiction on this court. Const. Mo.Art. 5, Sec. 3, V.A.M.S.; RSMo 1959, § 477.040, V.A.M.S. A jury returned a verdict finding the defendants guilty of unlawful detainer but found the value of the rents and profits to be $1.00 and the plaintiff’s damages to be $1.00. Accordingly judgment was entered for -restitution and $2.00 damages and $2.00 rent. Both parties filed timely motions for a new trial. The defendants’ motion on all issues except damages was overruled. The plaintiff’s motion for a new trial as to all issues except damages was also overruled and “as to the monthly value of the rents and profits and the amount of damages only is granted, for the reason that the verdict on said issues was contrary to the overwhelming weight of the evidence submitted on said issues.” The ensuing judgment entered upon these orders was designated as final and the defendants have appealed.
The respondent has filed a motion to affirm the judgment or to dismiss the appeal for the stated reason that appellants’ brief, points and argument do not meet the requirements of Civil Rule 83.05, V.A.M.R., particularly in that they “fail to inform Respondent’s counsel precisely what Appellants’ contentions really are, and what Respondent is required to answer.” In some respects the assignments of error are abstract and vague but the thorough brief the respondent has filed disproves the claim of un-understandability, the court has encountered no insuperable difficulties and the motion taken with the submission of the case is overruled.
The appellants, recognizing the effect of the court’s action in granting a new trial as to damages and rents on the stated ground that the verdict in this regard was “against the weight of the evidence” (RS-Mo 1959, § 510.330, V.A.M.S.; Sapp v. Key, Mo., 287 S.W.2d 775), make only the claim that neither the magistrate court, in which of necessity the cause was instituted (RSMo 1959, § 534.060, V.A.M.S.) nor the circuit court on appeal (RSMo 1959, § 534.390, V.A.M.S.) had jurisdiction of the cause. It is asserted that there was a lack of jurisdiction for the reasons (1) that the complaint in magistrate court did not state a cause of action and the circuit court’s jurisdiction being derivative acquired none, (2) the circuit court erroneously permitted an amendment, a departure, to plaintiff’s petition, (3) the amended complaint in failing to allege termination of the lease did not state a cause of action and, in any event, (4) the evidence was “insufficient to support any judgment for the plaintiff.”
The controversy arose in this background: In July 1962 the Kemps transferred two parcels of land in Piedmont, one an acre or more, to Ladue Supply, Inc., Mr. Ball’s predecessor in the lease and sale, for the nominal sum of $200.00. Ladue
On January 1, 1964, a fire damaged the building and each of the parties collected about $14,000.00 for their respective losses. Ball applied $4000.00 to replacing the roof and retained $10,000 which he says belongs to whoever becomes the purchaser of the property. In any event, the Kemps as lessees paid the first installments of rent but for 1964 the rent was in arrears $5,081.93 and in 1965 $6,133.91, a total arrearage of $11,215.84. On June 25, 1965, the sheriff of Wayne County served Orla Kemp with a notice to vacate for failure to pay rent. The Kemps nevertheless remained in possession but as Orla said, especially after he also got into the automobile business, “with problems” and, admittedly, “under present conditions” could not pay the specified rent. Even taxes and insurance had been paid by Ball and the Kemps were in default to the mortgagor of the bowling lanes and pin-setting machinery. It should be said that Kemp attributed a large part of his troubles to Ball’s failure to properly repair the building after the fire — leaving a leaky roof and foundation that injured three or four of the bowling lanes.
While these facts are necessary as background, in view of the circuit court’s granting a new trial as to damages and rents on the ground that the jury’s verdict as to these issues was against the weight of the evidence, they are no longer issues insofar as this appeal is concerned. In all this background the question is whether for the reasons now asserted the magistrate court in the first instance and the circuit court on appeal and trial “anew” (RSMo 1959, § 534.550, V.A.M.S.) had jurisdiction to try the cause and finally enter the judgment it did.
The appellants’ claim of lack of jurisdiction has to do with their assertion that the original “complaint” (forcible entry and unlawful detainer, a code unto itself, employs the common-law language of medieval England) fails to state a cause of action and therefore the magistrate court had no jurisdiction initially and, since its jurisdiction is derivative, the circuit court likewise had no jurisdiction and could acquire none. Because of the failure of the complaint to state a case in unlawful detain-er in the court of original jurisdiction, it is said that it could not be amended to state a cause of action in the circuit court. The deficiency asserted is that plaintiff “failed to allege when, where and how the lease on this property was terminated,” hence no way to determine “the time when the defendants are holding over after the termination of the lease.” And in this connection it is said that there is no allegation that plaintiff “owned the land on which the building was located.” Even after amendment it is said that there is “no allegation of the termination of the lease at any particular time or allegation of facts showing a termination of lease at any particular time.”
It is not necessary to explore these assignments of error in detail, they have all been specifically urged and considered here
As to allegations as to termination, the complaint alleged and attached as exhibit A the entire lease-sale agreement, it alleged the defendants’ occupancy under the lease and that beginning in 1964 they “have failed, neglected and refused to pay the rent provided in said lease,” that they had been served with notice of the default, a demand and notice to vacate and as previously stated by its own terms the lease provided that “(i)n the event of the failure on the part of the Lessees to pay any installment of rent promptly * * * the Lessor shall have the option to terminate this lease.” In Kansas City Building & Loan Ass’n No. 6 v. Harding, Mo.App., 58 S.W.2d 795, 796, the court said, “The point of jurisdiction is placed upon an alleged insufficient statement and a lack of proper affidavit. The complaint is in conventional form and charges all necessary jurisdictional facts and states that plaintiff at a given time had the legal right of possession to certain described premises, it being an apartment, and that defendant willfully, unlawfully, and without force holds over and detains said apartment ‘after the termination of the time for which said apartment was demised or let to her or the person under whom she claims.’ * * * The complaint in this case is made in the usual manner and is ample to meet a substantial compliance with all necessary requirements, and is sufficient to confer jurisdiction and support the judgment rendered.” See also Folger v. Lowery, Mo.App., 210 S.W.2d 1. c. 1014 and Equity Building & Loan Ass’n v. Murphy, 75 Mo.App. 57, 61.
The final point which hardly goes to jurisdiction in the sense urged here, that the evidence is “insufficient to support any judgment for the plaintiff,” is based upon
For the reasons indicated -the judgment is affirmed.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
All of the Judges concur.