588 S.W.2d 171 | Mo. Ct. App. | 1979
Plaintiffs-appellants, as lessors, filed suit in magistrate court
The identical situation which confronts us was presented in State ex rel. Wade v. Dalton, 559 S.W.2d 47 (Mo.App.1977). In citing Davenport Vinegar & Pickling Works v. Shelley, supra, this court held that a notice of appeal, which was a replica of the one filed here by plaintiffs, was sufficient despite the failure to specifically mention a counterclaim.
Plaintiffs also claim that the circuit court is without jurisdiction to consider the appeal, but we reject that argument.
Plaintiffs further assert that the magistrate judgment was incomplete since there was no award regarding possession of the leased premises. There is no evidence in plaintiffs’ petition or the record that the action instituted was for possession of the premises. Separate actions for possession and rent are provided under §§ 441.200 and 535.010, RSMo 1969. There was nothing for the magistrate court to consider with regard to possession.
The judgment is reversed and remanded.
. Suit was filed and tried in magistrate court prior to January 2, 1979.
. For some esoteric reason, unexplained in the record or briefs, plaintiffs have chosen to de
. But see: Preston Plumbing, Inc. v. Melman, 528 S.W.2d 524 (Mo.App.1975); Rudy-Fick, Inc. v. Snider, 363 S.W.2d 16 (Mo.App.1962); Gloria Lee Realty Co. v. Madigan, 243 S.W.2d 118 (Mo.App.1951), in which the intent to restrict an appeal to only a portion of the judgment was manifest from the notice of appeal.
. Defendant has moved to dismiss plaintiffs’ appeal for violation of Rule 84.04. And, indeed, plaintiffs’ brief is no paradigm to follow. But in view of our holding we must deny the motion to dismiss.