*1 418 SUPREME COURT OF Kelly. Gary Realty Co. v. 162); and (19 p. 861, par. goods L. are R. taken,” C. Judge Court, Recorders
in the cases of Lawson Connolly, it is 141 W. Mich. and Lawson v. N. purport ordi as the same held that ordinances of the question, cannot unreasonable, and he nance in are not ground. on that avoided disposes questions foregoing of the vital
IY. The result decree record, disclosed It nisi will be reversed. is so ordered. of the court White, sitting. Bailey, concurs; G., G., opinion foregoing PER : The CURIAM Mozley, opinion adopted hereby C., as of the All court. judges concur. of the
GARY REALTY P. COMPANY v. E. KELLY et al.; Appellants.
H. H. and G. BONFILS, F. TAMMEN Two, September 15, Division JURISDICTION: Amount 1. APPELLATE Involved: Value of Relief Money: Rights Incidental Affected. To determine the amount purpose dispute, determining appellate jurisdiction, must entire the facts be record. ascertained Where relief a-money judgment sought by proceeding, than necessarily involved, money, estimated in is the appellate jurisdiction; measure of involved must plain- value in be determined the relief to the defendant, prayed tiff, to the should the relief loss be versa, granted, or vice the relief denied. And it is the should Supreme right determined in the settles appellate jurisdiction, rights Question and not which incidentally a determination case. affected Entry -: Forcible and Detainer: J3, Quash -: Motion Exe- brought Rights entry of Movents. Plaintiff suit cution: forcible detainer, for $2000 and $650 recovered and monthly rents, doubled, both which Yol. APRIL TERM, Co. v. judgment was affirmed. Thereafter for the execution was issued time, damages, including profits, accrued which at the $32,829.29, commanding amounted to also the sheriff to writ *2 possession plaintiffs. movents, Thereupon, deliver to who were parties not to the action or filed motion a in the circuit ,of quash part awarding possession to the execution that to plaintiff, leaving part unaffected, the the they alleging that are the owners of the holders property the it, being appealed of the lease overruled and said motion Supreme Supreme to the Court. the reached the After case Court respondents compel give super- filed a motion to to movents a new bond, comply sedeas the Supreme motion, with the statutes. The tlie but Court sustained appellants (movents) comply order, plain- to the failed put possession restitution, tiff was in under an alias writ of thus being deprived possession days. Held, for six months and six dispute that the judged in amount is not double amount of rents' ad- entry suit, the forcible and detainer in nor is it value possession of the from the time the was taken from the quash ruling the motion until to of that appellate court, is determined is actual value of the possession were, the six months and six movents posséssion, being per month, which, less than $1000 as shown support quash, taken evidence the motion to does not $7500, Supreme jurisdiction. amount Court has no plaintiff -: -: -: -: Plaintiff’s Loss. Where entry recovered forcible and-detainer and double amount of the rents, party quash only part and a files a motion to third commanding the plaintiff, the sheriff restore and as said motion a result of loses time, for a his collect the the defendants is not impaired, and he loss has sustained at the hands movents possession during is the actual time he was prived of same.
Appeal from Jackson Circuit Court. —Hon. Willard P.
Hall, Judge. City Appeals. to Kansas Transferred Frank M. Lowe for movents and appellants. argue
To original or double rent disposed can and made proceeding give OF COURT Realty
Gary Co. v. We to discuss. jurisdiction, ridiculous this court too familiar with is not cite not that the court eases, few in this con- at hand that it have them hut rule, & Keleher 935; Johnson, nection. 199 W. Keleher v. S. n Vanderberg v. Kansas 498; 203 Mo. Henderson, Little v. n City Gas S. Co., 97 W. Wright respondent. Coopes, & Neel (1) being action in unlawful This detainer posses quash being the motion to directed controversy part sory execution, the clearly question of this court’s premises in contro value of the versy. only pos the rental value since Such value is *3 tlie title and not involved session to questions only are: what is the action. The this period possession time is what this and for juris determining court’s this value to be estimated appellants stay, en seeks to The motion diction1? August issued forcement of the execution day. the, Upon- filed same and the motion was on 4,1919, appellants trial court, this motion staying by appealing to secured order execution supersedeas furnishing bond. Such ac this court possession getting complainant Feb until kept from tion was ruary. a new writ of issued 1920, when execution 12, supersedeas appellants’ a new to furnish failure upon respondent’s required by of this court clearly, this of this on decision So, motion. appellants liable appeal whether are to determine will possession continuing respondent to withhold for respondent Aug controversy from from February 1920'. The decision 12, 4, 1919 to will ust also respondent hand whether on determine February 12, on 1920, to such entitled appellants pos entitled continue if not, ques appeal, will also decide the session; this therefore, TEEM, APEIL Yol.
Gary Realty Co. v. of respondent’s tion appellants liability from the time February 12, 1920, up of the determination appeal. this two periods of time from August 4, 1919, February aforesaid 12, 1920, from the time of the 1920, February 12, final determination appeal will cover, according our some ten estimate, months. was offered Evidence trial court to rental show value of the monthly ’ premises at the time of the appellants hearing quash execution disclosed same to be $1,000 per month. The value of the at the rate month $1,000 per for ten months is (2) But $10,000. appellants respondent are liable to for double such monthly rental for. this court value, previous held lease, claim, which appellants under was terminated July 2,
since been entitled to the It. follows that ap pellants have wrongfully been withholding if respondent, and even appellants prevail on this that decision will operate to revive dead but would have the lease, effect of us to requiring start all again in our suit to over recover possession of respondent’s property. appellants Since are wrongfully withholding .respondent’s possession after demand sheriff, are liable hands of all the time of their detention, said including the period from August 4, 1919, to February to res pondent rental double value. Sec.
E. S. And appellants’ liability 1909. in this sort aof in which have proceeding, intervened filed a bond, is also operation of Section by So, 7675. these statutes double applying of we liability, estimate the amount involved at not less than $20,000, and if allowance of further time for final determination of this by reason of possible motion for rehearing and to transfer Banc, Court in such as were filed on then the appeal, made, total previous in might $22,000 reach In volved $24,000. or fixing the COURT OF Co. ap supersedeas required amount of the bond of new pellants by 22, made this court on December evidently a was em 1919, of calculation similar basis required as the be in the sum ployed, larger (3) value is But even a amount in $25,000. - really appeal. sus involved on For effect of this appellants’ taining* quash would be render damages judgment re ineffective the for secured spondent judgment in this March That action, respondent awarding inwas favor damages premises together controversy, in with accrued judgment to date and at rate sum of $4000 per long month thereafter, so as defendants- $1300 fixing continued to the trial withhold monthly rental value At $650. August time issuance execution on unpaid judg there anwas balance to ment. of as shown writ of $32,829.91, .set forth in the record. have Interest costs accrued August point thereon since date, said Our sustaining that the effect of this motion hold would be to money judgment unenforcible aas well as as a So con restitution we controversy tend this situation by the amount increases figure total $35,000 some a of over $55,000. appeal C. The this case is from WHITE, quash order of the circuit court a motion to writ of restitution. suit, brought plaintiff justice before
peace County, against retainer, unlawful Jackson A; Kelly, LeMarquand LeDoux, the defendants E. P. W. LeMarquand; and Paul certified the case was to County, 18, 3916, March where, Circuit Jackson entered in favor of the. awarding defendants, said assessing City, unlawful Kansas property at $2,000, tention of *5 423 TERM, APRIL Yol. Gary Kelly. Realty Co. v. profits
and at which $650, were' the judgment, damages, court and rendered for $4,000 and per profits month resti for rents and until the $1300 premises. appealed tution the The case was to this court where the circuit court af was Realty Kelly, firmed. [Gary 92.] Co. S. W. After judgment, August affirmance of the 6, 1919, execution damages was issued for and costs commanding accrued, sheriff to deliver plaintiff. The amount accrued profits including up time, date of the is suance of execution, and doubled accordance judgment, the terms of the $32,829.29. was 1919, August Henry On G. F. Bonfils and 7, G. parties Tammen, not to the suit or the filed part quash, circuit in the court a motion plaintiff, awarding leaving the execution for the the defend- presented ants unaffected. This motion was under Sec- any provides tion Revised which Statutes 1909, person “against property any whose execution or order may apply *of shall sale issued” to the circuit purpose having quashed. the same for the alleged irregularities up in the certiorari sets proceeding, whereby reached the circuit cause alleges, peace, among justice of from the that, things, are the the movents owners the lease it. holders Bonfils, on filed Tammen The motion thus September, day overruled, was the second application af- day movents filed their the same granted appeal and their fidavit for Supreme Court. court, cause motion was reached
After respondents, November filed therein require give supersedeas appellants new bond comply given not. 7728, Revised This Statutes 1909. 7711 and with Sections OF COURT Realty Gary *6 Co. v. appellants, movents, sustained but motion, plaintiffs comply with and the were
failed put premises February six 12, 1920, months and six after the execution was issued. appellants filed a in this court to Appeals City transfer the cause the Kansas Court of jurisdiction, and on the that this court is without that motion must now considered. involved,
L The title to and tne real estate is not only question, settling to be determined matter money is value in issue. If the amount exceeds involved value seven thousand (7,500)
five hundred dollars then this jurisdiction; bas otherwise, not. de- To Appellate Jurisdiction. dispute termine the we as- must facts from the entire record. [Keleher v. 272 l. c. Johnson, Mo. ex v. 701; State rel. Ellison, Reynolds, 580; 272 l. rel c. ex State v. Mo. 245 Mo. Drainage 704; Wilson & Levee District, l. v. 237 Mo. c. Bridge 40; Co. v. Transit l. Co., 205Mo. c. 179-80;Vander berg Ry. v. Gas 199 c. Co., 459; Mo. l. v. 146 Co., Kitchell. l. c. 457.] Mo. sought recovery relief
“Where than in the money a necessarily the value money, involved, estimate will constitute the measure jurisdiction.” Reynolds, [State rel. v. ex 275 Mo. l. c. As 121.] otherwise stated Gast Bank Note v.Co. “ Assn., Fennimore Mo. 147 l. c. in ‘the amount money volved must be the value in determined relief the plaintiff, loss to the defendant, prayed granted, versa, should the relief or vice should ” the relief be denied.’ This statement of re the rule is peated in several Reynolds, [State cases. ex rel. v. 256 McCoy l. 718; Mo. c. v. 222 Randall, l. c. Clothing Mo. 34; 168 l. c. Watson, 143; Co. v. Mo. Fred A. H. Garlichs Co. v. Mo. Anderson, 200.]
Yol. TEEM, APB-IL Co¡
II. It is claimed ruling involved, as affected on' the motion, much more than the value during period days, plaintiffs six months and.six when the kept out of time Value execution was issued until Possession. They livered. ruling assert that a motion will determine the
property, of that must be as- period certained, mentioned, ex- tending afterwards, least until a final determination *7 of the cause in this court. If the action the trial of were ruling reversed the not restore the would movents possession they to the February lost which 1920. If posses- should resort another action to recover the amount involved in such action sion, other would de- jurisdiction which an termine of court to the the pro- then; lie in this would that not involved amount ceeding. the hand, On if the of the cir- cuit court affirmed, the motion should be the possession merely the be time affected result of would during kept period it; the was out of the which pos- ruling in determine were the would movents days right. they had and six no six months when session subsequent actual The rul- It would not affect adjudicata might, subsequent ing suit, be res in a as to gain loss or direct the the ruling possession plaintiff by the would involve period. amount It determined in this that is the jurisdiction not the which that settles suit incidentally affected. dispute” III. “The amount then must be found premises ascertaining of the the value of the period during the months and six six in which plaintiffs deprived possession by 'uTmages (it that'the to be effect motion seems conceded plaintiffs keep possession during out [Respondent period). inasmuch as asserts COURT OF MISSOURI, Co. judgment on which the execution was issued awarded profits, judg- and doubled rents and ment settled amounts of its loss period. during that
If the is correct in that, jurisdiction, because would in excess $7,500. If the actual value of the period during the be taken as the amount dispute, jurisdiction. then this- court has no profits found the value of six fifty hundred and dollars month, evidence taken at purpose determining the time not show value to exceed one thousand dollars.
It will be remembered that the movents here were original parties judgment. not The execution was not them. If their motion had issued been sus- liability it would not have tained, affected the original According defendants the execution. to the respondent’s statement brief a new execution was day February issued on the twelfth plaintiff under it. This delivered new execution is presumably record; in the it out set is an alias ac- requirements statute. cordance So far as *8 may plaintiff shows, the this record have recovered un- original that execution der defendants, the profits up damages, and entire doubled to the time plaintiff pre- was delivered. The was not by leveying motion from its for the vented prevented getting possession. it from amount; full deprived possession it When was six months did it what lose? Not six doubled and rental but the actual value of The damages, penalty which is an as in- attached deprived being not accrue to to cident damaged amount, in that it because was but be- had law violated the cause and incurred defendants penalty thus inflicted.- execution, VoL 284] 1920. APEIL TEEM,
State ex rel. Allen v. Dawson. already may if not still be collected, collected not fendants, rental value. movents, double the sufficient, The amount involved in case not to this is jurisdiction bring it within the court, and City case is to therefore transferred the Kansas Appeals. Railey Mosley, GG., concur. and opinion foregoing PEE CITEIAM: The by White, adopted opinion C., is as All court.. sitting. judges except Williamson, J., concur, Judges al., B. et THE rel. THOMAS ALLEN STATE ex County, v. M. Buchanan JOHN of Circuit Court of Judge, et and JOHN DAWSON, Circuit BENDEL Judges County and Court, BUCHANAN al., COUNTY. Banc,
In October Eight. Property Eight No If the to Maintain: 1. INJUNCTION: sought right pro- property petition is to be no discloses that allege injunction, some does not the writ of tected merely violated, seeks" be is about to or been duty right, privilege performing judges enjoin or from certain act, legislative sole upon them conferred equitable unconstitutional, ground of no invokes it act is said jurisdiction hear cognizance, without the circuit court political pursuance performed act to said are The acts be it. equity re- nature, has no and a court their exercise. strain their Injunction Quo cannot Law: Warranto. --: - — : Action at law; remedy adequate plaintiffs an have where maintained be pre- remedy legal adequate quo an warranto action duty exercising privilege judges or circuit vent employed deputies classify the number determine by statute, county offices, them conferred various constitutionality proceeding such statute such determined. *9 (Sec. 2631, R. QUO Scope: The statute WAEEANTO: Franchise. public persons ousting 1909) from a cannot confined to S.