Frick Co. v. Marshall

86 Mo. App. 463 | Mo. Ct. App. | 1900

SMITH, P. J.

This is an action for unlawful detainer commenced before a justice of the peace by the plaintiff, a Pennsylvania business corporation, against the defendant to recover the possession of a certain house and premises situate in Kansas City.

The cause was removed by appeal to the circuit court of Jackson county from whence a change of venue was awarded to Clay county, where there was a trial and judgment for the plaintiff and defendant appealed.

I. The defendant complains of the action of the circuit court of Jackson county in permitting the justice of the peace before whom the action was brought to sign his certification of his transcript which through his inadvertence had been omitted. Nothing of the hind was preserved by any bill of exceptions. No mention of such an error is found in the motion for new trial, so we need not notice it here, further than to say that if it had been properly preserved it could not have been sustained. At any time before the final order changing the venue the Jackson circuit court had jurisdiction of the cause, and it was then but proper to allow the justice to amend his transcript in the particular already stated. .E. S. 1899, sec. 4068.

II. And the objection that the court erred in overruling defendant’s motion requiring the clerk of the Jackson circuit-court to certify all the original papers in the cause not forming a part of the record can not be noticed by us, since no such objection was made one of the grounds of the motion for a new trial.

III. The defendant further complains of the action of the court in overruling his motion to dismiss the plaintiff’s appeal for -the reason that the affidavit for such appeal was not made in conformity to section 4062, Eevised Statutes. The action of the court was entirely proper. The affidavit was made in conformity to section 3371, Eevised Statutes. The provisions of section 4062, ante, have no application in a case of this kind. Chapter 29, Eevised Statutes, which relates to forcible entry and detainer, is a complete system in itself for the government of proceedings begun under -it. Carter v. Tindall, 28 Mo. App. 316; Hastings v. Hennessey, 52 Mo. App. 172.

IY. The action of the court in refusing to continue the cause on the filing of a new appeal bond was not erroneous. The statute provides that if the appeal bond is insufficient or defective a new bond may be filed within such time as shall not delay the trial. E. S. 1899, 3386. Besides, applications for continuances are always addressed to the sound discretion of the court and its action will not be disturbed unless its discretion has been abused, which we can not see was the case here. King v. Pearce, 40 Mo. 222; Colhoun v. Crawford, 50 Mo. 458.

V. The defendant objects further that the court erred in permitting the introduction of any evidence under the complaint but on what ground, the bill of exceptions does not inform us. Objections to evidence must specify the ground thereof. A party can not be allowed at the trial to make a general objection to the introduction of evidence and then specify here for the first time the particular grounds thereof. Such a practice will not be tolerated.

VI. It is stated in the bill of exceptions that the plaintiff without objection gave in evidence the certificate of the secretary of state of Pennsylvania showing the plaintiff to have been a manufacturing corporation, but the certificate itself is not set forth; and in the same connection Vol. 1 of Brightly5 s Purdon’s Digest of the Laws of Pennsylvania from 1700 to June 6, 1883, was given in evidence. To the introduction of the latter the defendant objected for the reason it does not purport to be the laws of Pennsylvania as published by the authority and direction of the state of Pennsylvania. While the title page of said book is not set forth so as we can examine the same for ourselves, yet we may say we discover no error in the ruling of the court in admitting it in evidence. Section 3089, Revised Statutes, provides that the printed volumes purporting to contain the laws of a sister state or territory shall be admitted as prima facie evidence of the statutes of such state or territory. The objection, as has been stated, is not that the book does not purport to contain the laws of Pennsylvania, but that it does not purport to be published by authority of that state. If it purported to contain, as we must presume it did, the laws of such state, it need not purport to have been printed under state authority. Cummings v. Brown, 31 Mo. 309; Williams v. Williams, 53 Mo. App. 617. The certificate of incorporation having been received in evidence, the book purporting to contain the laws of the state was admissible in evidence to show that the incorporation was in accordance with such laws.

VII. Defendant further complains that the court erred in overruling his objection to the reading in evidence of the deposition of Ezra Erick, on the ground that it was no part of the record having been neither certified by the clerk of the Jackson circuit court nor filed in that court. The deposition as to certificate, etc., is incomplete and it is impossible for us to determine whether or not it had been filed in either of the two courts in which 'the cause has been pending. It appears the cause was tried before the justice and it is likely the deposition was filed there; and if so, that was sufficient. No further filing was required. It is not pretended that the deposition had not been taken in pursuance of proper notice and was not properly certified. The judgment can not be disturbed for any such irregularity, if such it was, and especially so since the action of the court was not prejudicial to defendant.

VIII. The defendant offered to prove by one of the plaintiffs witnesses the date of the deed under which plaintiff claimed title to the premises in dispute which offer was by the court rejected; and of this the defendant complains. This, it seems to us, was an immaterial fact; and if it was material it should have been proved in a different way. There was no foundation laid for such parol proof. It was not shown that the deed was lost or destroyed or that there was no record of it.

IX. The defendant’s demurrer to the evidence was properly overruled. The evidence clearly showed that the defendant had rented of the plaintiff the premises and was unlawfully holding the possession after the termination of the time for which they had been rented to him. So far as we can see, there was no reason shown, why he should not make restitution.

X. The defendant requested two instructions: the first told the jury that if the plaintiff was a foreign corporation that it was not entitled to recover unless it had shown that before the trial of the action it had filed in the office of the secretary of state a copy of its charter or articles of incorporation, or a copy of its certificate of incorporation, and had received from the secretary of state a certificate to the effect that it had complied with the laws of the state; and the other, in substance, was that if the plaintiff had held the said premises for more than six years before the commencement of this suit, or that it was unauthorized by its charter to hold or traffic in real estate then it could not recover.

Any corporation wherever created, either engaged or about to engage in business in this state is not included in the operation of the act of 1891, p. 75 — Revised Statutes 1899, section 1025 — and is therefore entitled to sue in the courts of this state upon the principles of comity.

There is nothing in the record before us disclosing that plaintiff is now engaged or is about to engage in doing business in this state, so that the statute is not in the way of the plaintiff in prosecuting its suit. . As the facts are made to appeai by the record we think the statute is inapplicable in a case like this. Blevins v. Fairley, 71 Mo. App. 259; Hays v. Merkle, 70 Mo. App. 509; Heating Co. v. Gas Fixture Co., 60 Mo. App. 118.

And as to the second of said instructions, it is sufficient to say that the numerous authorities cited in plaintiff’s brief conclusively show that if the plaintiff is holding the premises in dispute in violation of law that the state alone can take advantage of it. The plaintiff can hold such premises until an officer of the state can be found to maintain an action in such courts as are competent to declare that they do escheat.

It seems to us that the appeal is wholly destitute of merit. The judgment will be affirmed. All concur.