32 Mo. App. 459 | Mo. Ct. App. | 1888
— A judgment rendered in this suit in the Morgan county circuit court in favor of W. T. Hubbard, the defendant in error herein, was, on November 21, 1887, by the decision of this court, reversed and remanded. Hubbard v. Quisenberry, 28 Mo. App. 20. The amended petition, upon which the cause was tried, 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 the defendant entered into possession of said land and occupied the same as the tenant of the plaintiff and under an agreement with the plaintiff to pay to him on or before the end of the year a reasonable rental-for plaintiff’s undivided interest therein, and
I. Counsel for Quisenberry contend here that the trial court erred in overruling their motion to strike out the amended statement of the plaintiff Hubbard. The
In Nat’ l Banking & Ins. Co. v. Knaup, 55 Mo. 154, Adams, J., draws this distinction: “The difference between a demurrer and a motion to strike out is, that the demurrer and the action of the court on it form a part of the record proper, where the party stands on it, but a motion to strike out a pleading does not become a part of the record unless it is preserved by a bill of exceptions.”
In Jefferson City v. Opel, 67 Mo. 394, Henry, J., says: “A clerk cannot make anything a record which he pleases to write in the order book or sees fit to copy into a record. Nothing but the record proper is a part of the record until made so by being copied into the bill of exceptions, a mere reference to motions and instructions in the bill of exceptions by citing the page on which they appear, on what the clerk pleases to certify as the record, will not suffice. They must be copied in full.” He cites United States v. Gamble & Bates, 10 Mo, 459; State v. Wall, 15 Mo. 208; Christy's Adm'r v. Myers, 21 Mo. 112; State v. Shehan, 25 Mo. 565; Sturdevant v. Walkins, 47 Mo. 177.
Though the clerk, in this instance, has copied what purports to have been the motion in two places in what is certified as a transcript of the record, it is not
Counsel for Quisenberry, in this court, seek to avoid the preclusion imposed by the condition of the record by arguing that at the commencement of the trial upon the merits they interposed an objection to the introduction of any evidence under the amended statement, for the reason that the action could not be maintained upon said statement, the plaintiff and defendant being tenants in common, and for the reason that the amendment was an entire change of the cause of action from that set out in the original statement, which was overruled by the trial court and exception was noted. It is true that this objection, with the ruling of the court and the exception of counsel thereto, is set out in the bill of exceptions filed on the trial of the merits of the cause. But we have been confronted with another diffic ulty. The motion for a new trial filed therein failed to mention or call the attention of the trial court to such objection and ruling. Nor were any exceptions saved to the .action of the court in overruling the motion for a new trial which was filed. “No exceptions can be taken on ■appeal or writ of error to this court to any proceedings had in the progress of the trial in the court below, which are of such a nature that they do not appear on the face of the record, nor become a part of the record, without being made so by a bill of exceptions, unless they have been expressly decided by the court below * * * and in order that it may appear that such ■exceptions have been expressly decided by the court below, there should be a motion for a new trial, which should appear in the bill of exceptions as overruled and an exception should he taken to the decision of the court thereon." State v. Marshall, 36 Mo. 400; White v. Caldwell, 17 Mo. App. 691; Lewis x. Moxy, 9 Mo. App. 597; Rotchford v. Creamer, 65 Mo. 48; St. Joseph v. Ensworth, 65 Mo. 628.
This court will only review the record proper in a case, when it fails to appear that any exceptions were taken to the action of the trial court in overruling the
It was decided in Jones v. Manley, 58 Mo. 559, that where a motion to strike out a pleading is set out in full and preserved in the bill of exceptions, it stands upon the same footing as a demurrer and need not be mentioned in a motion for a new trial. But that was not done in this case. Hence the only office we can assign to the motion in arrest, which is properly preserved in the bill of exceptions with the action of the court and exceptions to its ruling thereon, is to present to us the record proper, viz., the petition, affidavit, summons, and subsequent pleadings, including the verdicts and judgments on the plea in abatement and on the merits. It cannot be made to perform the functions of a motion for new trial and present for our consideration matters of exception arising wholly from the action of the court in progress of the trial. White v. Caldwell, supra. Section 3774, Revised Statutes, 1879, provides that: “ No exception shall be taken in an appeal or writ of error to any proceedings in the circuit court except such as shall have been expressly decided by such court.” It is to give force and effect to this statute that appellate courts constantly require that matters of exception should be called to the attention of trial courts in motions for new trial's followed by exceptions to the actions of trial courts in overruling such motions. But aside from these considerations, the defendant having gone to trial on the amended statement waived the error, if any, in permitting the'amendment. Scovill v. Glasner, 79 Mo. 449; Fuggle v. Hobbs, 42 Mo. 541.
It follows from what has been said that we cannot consider the merits of some of -the points raised by
II. It appears from the evidence introduced by-plaintiff that the land in question originally belonged to a Mrs. Mattox. She died leaving heirs interested in the land and one Wendleton administered upon her estate. Wendleton rented the land from March 1, 1882, to March 1, 1883, to Quisenberry, who entered into possession of the land as tenant of the administrator. During this year Hubbard purchased about one-half of the interests of the heirs in the land. Before the expiration of the year the administrator informed Quisenberry that he had turned the land over to the legal owners. About March 1, 1883, Quisenberry went to see Hubbard and informed him that he could not get away and that he wanted the place for that year. Hubbard (who was then sick) told Quisenberry to remain on the place that year and when he, Hubbard, got able they would make more positive arrangements about it.
Quisenberry remained on the place during the season of 1883 and in December of that year, the parties had some difficulty in adjusting the rent for that year, but the rent was finally paid by Quisenberry to John Wendleton who was acting as agent for Hubbard. At this time Hubbard had purchased all but a few of the interests of the heirs in the land, and it appears that he gave Quisenberry notice that he would want possession of the place in March, 1884. Some time between January and March, 1884, Quisenberry purchased an outstanding twenty-fourth interest in the land, and by reason of this purchase, it seems, defeated Hubbard in a suit for possession of the place. In March, 1884, after the suit for possession was* decided, Hubbard and Quisenberry conversed with each other about the rent for the year 1884, Hubbard stating that he would expect rent for his interest in tlie land at the rate of eighty dollars for the whole place, and Quisenberry stating that he would not pay eighty dollars a year for it, that he would pay fifty dollars — what he had been
Under the statement, affidavit, plea in abatement and evidence, two issues were presented — whether the relation of landlord and tenant existed between the parties and whether the tenant was, at the time suit was commenced, disposing of the crop or intending to dispose of the crop, so as to endanger, hinder or delay the landlord in the collection of rent. We are not prepared to say that there was no evidence tending to establish the tenancy or the disposition of the crop as alleged in the affidavit for attachment. These were questions of fact to be determined by the jury under proper instructions. It is a wise feature of our law which rests the decision of such questions with the trial court or jury trying the cause, where the manner of witnesses, the character and conduct of litigants are protrayed at the trial, in a manner which can never be transcribed upon the pages of a record.
The court upon behalf of plaintiff Hubbard instructed as follows:
“1. The jury are instructed that it is wholly unnecessary for the plaintiff to show that there was any express contract between the plaintiff and defendant for the renting of the plaintiff’s undivided interest in the lands in dispute to the defendant, or that they ever agreed upon the amount of rent to be paid therefor, but if the jury believe from the evidence that the defendant originally rented the land from the administrator of one Mattox, and went into possession under said renting,
“ 2. The jury are instructed that the landlord has a lien upon the crop grown upon leased premises in any year for the rent of said year and the tenant has no right to use the crops, so as to defeat the enforcement of said lien ; and if the j ury shall find from the evidence that at or about the time of the institution of this suit defendant was disposing of the corn raised upon the land in controversy, or that he intended to and was about to dispose of the same by feeding said corn to his stock without paying the rent, and so as to endanger, hinder or delay the plaintiff in the collection of his rent, then the jury must find the issues for the plaintiff, even though the jury may believe that the defendant had other property or money, provided the jury shall believe from the evidence that the defendant occupied the land under an implied contract of renting with the plaintiff as defined in the first instruction for the plaintiff.
“3. Although the jury may believe that the amount of the rent to be paid for the plaintiff’s undivided interest in the land in controversy was never agreed upon, yet if the jury believe that the defendant occupied the land with the permission of the plaintiff, and that the defendant expected to pay, and the plaintiff expected to charge him the rent therefor, then the
‘ ‘ 4. The fact that the defendant acquired an undivided interest in the lands in dispute, did not authorize him to take exclusive possession of the lands in controversy, nor would it release him from the payment of rent for the plaintiff ’ s undivided interest therein, if defendant occupied it with the permission of the plaintiff, and with the expectation upon the defendant ’ s part to pay and upon the plaintiff’s part to receive rent therefor.
“5. It is no defense to the issue upon trial before this jury that the defendant may have worked upon or improved in any way the lands in dispute, and the jury will not take any such matter in consideration in making-up their verdict.”
And at the request of the defendant Quisenberry, the court instructed as follows :
“ 1. Unless the jury shall believe from the evidence that plaintiff rented the land mentioned in the evidence to defendant, or that defendant recognized the plaintiff as his landlord, or that there was a contract expressed or implied existing between them for the payment of rent by the defendant to the plaintiff you will find your verdict for the defendant.
“2. The court instructs the jury that it devolves upon the plaintiff to prove to your satisfaction that at the time of commencement of this suit the defendant was the tenant of the plaintiff and as such was liable to pay him rent for land, and that he was in some manner disposing or attempting to dispose of the crop grown on said land so as to endanger, hinder or delay the plaintiff from the collection of his rent, and unless you believe that such proof has been made you will find your verdict for the defendant.
“3. Although the jury may believe from the evidence that during the year 1885 the defendant occupied certain lands in which the plaintiff had an interest, and raised a crop thereon, yet if you further believe that the
These instructions fairly covered the law of the case, and presented the respective theories of the parties as developed by the evidence.
The fourth instruction asked by counsel for plaintiff in error was properly refused. It presented a question with which the jury could have no concern, a purely legal question that was for the court, when raised at a different time and in a different manner. As long as the amended statement is recognized by the court it stands in lieu of the original statement and no issue growing out of the latter, or based upon it, could be properly submitted to the jury.
No error was committed in the refusal of the fifth instruction. The fact that Quisenberry was solvent and owned other property than the crop grown on the demised premises could not avail him as a defense. Haseltine v. Ausherman, 87 Mo. 410.
The sixth instruction contained no principle of law but that had been fully recognized by the court and given in the first three asked and given on. behalf of Quisenberry. The cause was tried upon the theory that the relation of landlord and tenant had to be established to warrant a finding for Hubbard. It may be conceded that if they were mere tenants in common, and no contract, express or implied, of tenancy existed between them, Hubbard would not be entitled to a right of attachment under the landlord and tenant act, but it by no means follows that if they were tenants in common, a contract of tenancy could not exist between them. One tenant in common can lease his interest to his companion. Taylor on Land, and Ten., sec. 115. Under snch circumstances there can be no question, we think, that the relation of landlord and
Finding no error in the instructions, the only-matter properly before us, the judgment of the lower court should, in our opinion, be affirmed. It is so ordered.