Kerr v. Simmons

Philips, C.

Thе plaintiff, Kerr, sued the defendants on a contract of lease. The pleadings and history of the action, based on the original petition, will appear by reference to the report of the case found in 9 Mo. App. Rep. 376.

On the reversal and remanding of the cause to the circuit court of St. Louis county, the plaintiff filed an amended petition, alleging, substantially, that on thе 10th day of March, 1873, one Biddle leased certain property in the city of St. Louis to the defendants for a term to end on the 31st day of December, 1878, at the yearly rental of $12,500, payable in monthly installments. It averred that defendants in said contract of lease covenanted with said Biddle and his assigns, that they should pay to him or his assigns the rent reserved during the term, and that they would pay double the rent for every day they, or any one else in their name, should hold on to the said premises after the expiration of thesaid term, to-wit|: after December 31st, 1878. That before the expiration of the term ‍‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍said Biddle granted to plaintiff, Kerr, the reversion of the demised premises, and assigned to him all the interest of Biddle in the said lease; and that defendants attorned to plaintiff. It is then averred that defendants withheld from plaintiff'the possession of the premises after December 31st, 1878, and held on to the same until the 28th day of Febi’uary, 1879. Wherefore, by reason of their said covenant, it is alleged the dеfendants became liable to pay plaintiff double the rent as aforesaid, for the months of January and February, amounting in the aggregate to the sum of $4,166.-66 for which judgment is asked.

The defendants answered, denying generally the allegations of the petition, except as thereinafter admitted. The answer then, after admitting the execution of the lease, claimed that the petition did not fully and correctly set out its terms. It them averred that by the terms of the lease defendants covenanted to surrender the premises at the end of the term, and to pay double the rent reservеd thereon for every day they should thereafter hold the same; that they did not surrender at its termination on the 31st day of December, 1878, but held on until the 28th day of February, 1879. It is then alleged that in 1879 the plaintiff brought suit against them on the same covenant sued on herein, and recovered judgment against them thereon, covering the month of January embraced in this action, in the sum of $2,126.63, which defendants have fully paid аnd satisfied.

To the matter pleaded in the last paragraph of the answer plaintiff' demurred, chiefly on the ground that it professed to plead in bar to the whole action matter which cоnstituted no defense to the entire action. The demurrer was overruled, and the plaintiff failing to reply, judgment was entered against him as for want of a reply. Erom this action of the court he appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed. He has brought the cause here on appeal.

I. The question lying at the threshold of this аppeal is, has this court jurisdiction of the case? Section 12 of Article 6, of the State constitution, provides that: “ Appeals shall lie from the decisions of the St. Louis ‍‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍court of appеals to the supreme court * * in the following cases only: In all cases where the amount in dispute, exclusive of costs, exceeds the sum of $2,500,” etc. The amount sued for, on the face of the petition is $4,166.66; which sum represents the whole amount of rent for the months of January and Eebruary. The answer averred that plaintiff' had recovered from defendants the sum of $2,126.63, being the amount of rent fоr said month of January, which would leave a balance only of $2,040.03, being less than $2,500. If, therefore, the state of the pleadings be such as to admit this fact, this court has no jurisdiction over the subject mattеr on appeal from the St. Louis court of appeals. The jurisdictional fact, in such cases is not necessarily to be determined by the sum demanded in the petition. The language of the constitution is, “the amount in dispute.” To ascertain the actual amount in dispute recourse should be had to the whole record. The federal statute providing for appeals from the cirсuit courts to the Supreme Court of the United States, contains the same language, in effect, “ the matter in dispute.” In Lee v. Watson, 1 Wall. 337, the court says: “ By matter in dispute is meant the subject of litigation, the matter for which suit is brought, and upon whiсh issue is joined, and in relation to which jurors are called and witnesses examined.” So in Schacker v. Hartford Fire Ins. Co., 93 U. S. 241, the court held that, although the amount for which judgment was asked was $3,000, yet, if on inspection of the record ‍‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍it appearing that recovery could, not, in fact, be had for more than $1,400, the court had not jurisdiction. And in Gray v. Blanchard, 97 U. S. 565, the court say: “ While in the absence of anything to the contrary the prayer for judgment by the plaintiff, in his declaration or complaint, upon a demand for money only, or by the defendant in his counter-claim or set-off, will be taken as indicating the amount in dispute, yet if the actual amount in dispute does otherwise appear in the record, reference may be had to that for the purpose of determining our jurisdiction. Ordinarily this will be found in the pleadings, but we need not necessarily сonfine ourselves to them. We hear the case upon the record which is sent up, and, if taking the whole record together, it appears that we have no jurisdiction, the case must be dismissеd.” '

It is apparent from the face of the petition, that, if the month of January were eliminated, the amount in dispute would be less than $2,500. The answer alleged facts which, if true, showed that the plaintiff" hаd judgment and satisfaction for the identical sum claimed for the month of January. Did not the demurrer admit this fact ? The learned counsel, quite ingeniously seeks to avoid the effect of the admission of the demurrer by arguing that the matter demurred to was .pleaded in bar of the whole action, and as the plea was good only, as a defense to a part of the action or sum sued for, it was bаd as a whole ; and as a demurrer admits only facts that are well pleaded, there was, in legal contemplation, no admission of the fact of adjudication and payment of the sum, in pаrt, sued for. He, therefore, very adroitly seeks to force upon this court the determination of the correctness of the decision of the court of appeals on the question as to the judgment and satisfaction pleaded being a bar to the action for the rent of February. Attention to the whole answer forbids, as we think, the construetion placed by plaintiff’s counsel upon the matter demurred to. lie argues the ease on the assumption that the prayer for judgment by defendants is in connection with and based on the effect of the ‍‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍fact pleaded touching the former recovery. This is incorrect in fact, as the “ wherefore defendants pray judgment, etc.,” is at the conclusion of the whole answer and in a separate paragraph.

Under our system of pleading the facts constituting the cause of action, or matter in defense, are required to be stated. The relief to which the party is entitled, the effect of the matters sеt up, is determined by the court as a matter of law, from the facts pleaded. Neither evidence nor conclusions of law are to be stated. The prayer itself is not demurrable. Saline County v. Sappington, 64 Mo. 72. Though the prayer asked for too much, the court will administei judgment in accordance with the facts alleged and proved. McClurg v. Phillips, 49 Mo. 315. The practice act was to make all pleadings special, to abolish general averments stating conclusions of law, in a declaration or answer. It was meant that ‍‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​‌‌​​​​‌​​​​​​‌‌‌​​‍the pleadings should be a statement of the facts of the case on both sides, not of the evidence, but of the facts to which the law is applicable.” Gamage v. Bushell, 1 Mo. App. 418. “ The allegation controverted must be the statement of a fact; hence, in making an issue he has nothing to do with legal conclusions.” Bliss PI. 334. The code itself provides that “ the court may grant him any relief consistent with the case made and embraced within the issue.” The portion of the answer demurred to stated as a fact that the plaintiff had maintained one action against him predicated of the contract sued on, which recovery embraced a part of the same period of time for which recovery is here sought. The fact pleaded certainly constituted a good defense. Whether it was a bar to the whole action or pro tanto was a matter of law for the court. Whether it wаs one or the other the fact remained, and so was well pleaded. It certainly would have been error m the tiiai court to have stricken it out as constituting no defense. The demurrer admittеd the truth of the fact pleaded for the purposes of the demurrer. Being unquestionably good as a defense to a part of the cause of action declared on, the demurrer wаs properly overruled. The demurrer admitted the fact, but raised the issue of its legal effect. On this admission it is manifest the amount actually in dispute oil this record does not exceed the sum of $2,500, and this court is without jurisdiction acquired through the appeal.

The provision of the constitution was ordained for a wise purpose, in the judgment of the convention. It was to relieve the overcrowded condition of the docket of the Supreme Court, and to afford relief and protection to litigants within the local jurisdiction. Both its spirit and letter should he observed by the Supreme Court, by not suffering them to be evaded by sacrificing substance to shadow.

It follows that the appeal should be dismissed.

All concur. Hough, C. J., absent.

Case Details

Case Name: Kerr v. Simmons

Court Name: Supreme Court of Missouri

Date Published: Apr 15, 1884

Citation: 82 Mo. 269

Court Abbreviation: Mo.