Hubbard v. Quisenberry

28 Mo. App. 20 | Mo. Ct. App. | 1887

Philips, P. J.

This action was begun in a justice’s court. The statement of the cause of action alleged, substantially, that on the first day of March, 1885, plaintiff was the owner of an undivided fifteen-sixteenths interest in certain lands situated in Morgan county; that on said .day the defendant entered into the possession of said interest, and used and occupied the same, and made a crop thereon during said year; that the whole of the premises so occupied were reasonably worth the sum of eighty dollars, and the fifteen-sixteenths interest of plaintiff therein- was worth seventy-five dollars, for which judgment was asked. To this statement was appended an affidavit, under the landlord and tenant act, for an attachment, which alleged “that the plaintiff has a just demand against J. T. Quisenberry, the defendant, and that the amount which the affiant believes plaintiff ought to recover, after allowing all just credits and setoffs, is seventy-five dollars, now due, and that he has good reason to believe, and does believe, that the defendant is attempting to dispose of, and is disposing of, the crop grown on the demised premises mentioned in the accompanying petition, so as to endanger, hinder, or delay the landlord therein mentioned from the collection of his rent; and that he believes that unless an attachment issue he will lose his rent due him from said defendant.”

The defendant appeared and filed the following plea in abatement: “ J. T. Quisenberry, the above-named defendant, for his plea in abatement in the above-entitled canse, on his oath states that he denies each and every allegation stated in the petition and affidavit filed in said canse on which the attachment was issued. Defendant denies that he at any time rented. the lands described in plaintiff’s petition from the plaintiff, or that he ever agreed to pay plaintiff any rent therefor; and denies that the plaintiff was the owner of said land at the date of the.commencement of this suit, or that he is now such owner, and denies that the relation of landlord and tenant ever existed between plaintiff and defendant. And he further denies that he ever attempted to dispose of any part of the said crop for the purpose of hindering or delaying his creditors, or in any other manner that he was not authorized or had a right to do.” The justice, regarding this plea in the nature of an appearance to the merits, declined to try the issues on the plea in abatement to the grounds of attachment, and proceeded to render judgment against the defendant on the merits. From this judgment the defendant appealed to the circuit court.

In the circuit court, when the cause came on for trial, the plaintiff filed an amended statement, in which it was alleged that the said interest of plaintiff, at the time aforesaid, was leased to defendant under a contract with defendant, whereby defendant agreed to pay plaintiff the reasonable rental value thereof, which was averred to be seventy-five dollars; that defendant so occupied the said premises, raising a crop thereon. Thereupon the defendant offered to file a plea in abatement to the grounds of attachment, and also asked leave to withdraw the original plea. To this the plaintiff objected, for the reason “ that said plea had been passed upon by the justice before whom the cause was tried, and said attachment held valid, and for the further reason that said plea in abatement raised an entirely different issue from that tried and appealed from, and is not the same cause of action tried before said justice, and that said plea had been waived.” The court sustained the objection, and refused to allow the defendant to so file his plea in-abatement. The defendant then demanded a trial upon the plea in abatement filed by him to the affidavit appended to the original statement. This was also refused by the court, on the ground that the original plea contained a waiver of the grounds of attachment by taking issue on the merits. The parties were thus compelled to go to trial on the merits against the objection of defendant. The court found the issues on the merits for the plaintiff. Defendant prosecutes this appeal.

I. Plaintiff contends that defendant is precluded from having the action of the justice of the peace touching the plea in abatement reviewed in the circuit court, for the reason that the defendant did not appeal from the judgment of the justice sustaining the attachment. The justice made no formal entry of judgment, as the statute contemplates he should do in such cases, sustaining the attachment, but seems to have treated the plea as one to the merits, and, therefore, the attachment was sustained, and he proceeded to trial and judgment on the merits. The only remedy left defendant in such contingency is to appeal from the final judgment. He could not appeal earlier. Duncan v. Forgey, 25 Mo. App. 310. Section 439, Revised Statutes, applies, in so far as applicable, to proceedings by attachment in justices’ courts. Hicks v. Martin, 25 Mo. App. 359. The defendant against whom judgment goes on the attachment in a justice’s court would not, as in the circuit cou;rt, be required to file his bill of exceptions at the end of the trial of the issues on the plea in abatement. As the defendant could only appeal from the adverse ruling of the justice on his plea in abatement, after final judgment on the merits, which was the only formal judgment entered up by the justice, the appeal taken by him brought up the whole case, and the court should have proceeded to try the case de novo.

It may be conceded to the plaintiff that- the plea filed by defendant in the justice’s court went to the merits as well as the matter in abatement, and for this reason Was bad as a plea in abatement. Cannon v. McManus, 17 Mo. 345. The plea in this case went so directly to the matters averred in the statement oí the cause of action as to make it distinguishable from the cases of Sharkey v. Williams (20 Mo. App. 681), and Reese v. Augustin (24 Mo. App. 671). But we feel constrained to hold, following the case of Phillips v. Bliss (32 Mo. 427), which does not appear to have ever been overruled, that the defendant should have been permitted to file the plea in abatement offered by him in the circuit court. Having regard to the fact that the statute (sect. 471, Revised Statutes) concerning proceedings by attachment in justices’ courts allows a verbal plea in abatement to be interposed, and, looking to the general spirit of the code respecting errors and defects in justices’ courts, and the character of such pleas under our statute, it would seem that an amended affidavit or plea can be made on an appeal in the circuit court. Cayce v. Ragsdale, 17 Mo. 32 et seq.

II. We cannot consider the imputed error, raised by appellant, on the action of the circuit court in permitting the plaintiff to file an amended statement of the cause of action. It does not appear from the appellant’s abstract of the record that he objected .thereto in the trial court. If any motion to strike out the amended statement was, in fact, made, the abstract presented to this court does not show the fact. Unless defendant duly interposed the objection, and saved exceptions to the action of the court, he cannot, for the first time, raise such question here.

For the error of the court in refusing to permit the defendant, after the plaintiff filed an amended statement, to file the plea in abatement offered there, its judgment

is reversed and the cause remanded.

Ellison, J., concurs. Hall, J., absent.