13 Mo. App. 249 | Mo. Ct. App. | 1883
delivered the opinion of the court.
This was an action of unlawful detainer, brought against a tenant who is alleged to have unlawfully held over after the expiration of his lease. The statement of the plaintiff recites the lease, charges the unlawful holding over after its expiration, lays the value of the monthly rents and profits at $35, and claims damages in the sum of $100. The plaintiff had a judgment before the justice, and the defendant appealed to the circuit court. When the cause came on for trial before the circuit court, the defendant failed to prosecute his appeal, and did not answer when called. The plaintiff was present in court, and announced himself ready for trial, although he had not before entered an appearance in the cause. The court proceeded to try the cause de novo without a jury, and found that the complainant had sustained damages in the sum of $105, and that the value of the monthly rents and profits was $35. The court therefore proceeded to render judgment for the sum of $210, double the sum assessed by the court as the complainant’s damages, and also a judgment for rents and profits at the rate of $70 per month, double the value of the monthly rents and profits so found by the court.
The defendant afterwards appeared and filed in due time motions for new trial and íd arrest of judgment, and, in this manner, saved exceptions to the action of the court.
The sections of the statute relating to forcible entry and detainer which bear tipon the question before us, are'as follows : “ Iu all cases where the complainant shall have removed the cause, by certiorari or appeal, and shall not have filed a sufficient affidavit or recognizance, and shall fail to perfect the same according to the order of the court, or shall have failed to file any affidavit or recognizance within the time required by law, or shall not prosecute his suit or appeal, the same shall be dismissed.” ' Rev. Stats., sect. 2487.
“ In case of such default, by a defendant suing out a certiorari, judgment may be rendered against him by default; or in case of appeal, if he be appellant, the judgment of the justice may be affirmed or the appeal dismissed.” Ibid., sect. 2488.
“ When an appeal shall be dismissed, such dismissal shall be certified to the justice, who shall, thereupon, issue execution without delay.” Ibid., sect. 2489.
“ In case of a judgment by default, a jury, or the court, if no jury be required, shall assess the monthly value of the premises, and the damages and judgment shall be rendered on the verdict accordingly.” Ibid., sect. 2490.
The judgment of the circuit court will be accordingly reversed and the cause remanded, with directions to enter judgment for $200 damages, and for $70 per month rents and profits, the same being double the amount of the damages alleged and found, and double the value of the rents and profits, according to the finding of the trial court. It is so ordered.