40 Mo. App. 680 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This is a proceeding by mandamus against the clerk of the circuit court of Marion county to compel him to issue an execution and writ of restitution in an action of ejectment, wherein the plaintiff recovered a judgment against Fred. Bogar and John C. Crane. The respondent made a return, showing that, at a term subsequent to the rendition of the judgment and prior to an eviction thereunder, EL A. Cook and John C. Crane (the latter one of the defendants in the ejectment suit) filed their petition under the provisions of the statute ( Revised Statutes, 1879, section 2259, et seq.), praying for an injunction to stay the plaintiff from taking possession until they should be compensated for certain improvements made by'them on the land as occupiers in good faith, and for certain moneys which they had
The only question raised by the appellant is, whether the proceeding by petition for compensation for improvements is an independent suit in such a sense as requires the issue and service of new process, in order to give the court jurisdiction to make the order authorized by the statute.
The proceeding authorized by the statute is sui generis. The right to compensation for improvements is not given merely to the defendant in the action of ejectment, but is given where a judgment has been rendered in such an action “against a person in the possession, held by himself or by his tenant.” In this case Bogar was the tenant in possession, and Cook and Crane, according to their petition for compensation, as described in the return, were his landlords. The proceeding is certainly in some respects an independent proceeding, in the nature or a separate section. This is shown by the case of Russell v. Defrance, 39 Mo. 506, where the pleadings in such a proceeding are set out. It is also shown by the language of the statute (section 2260 of the Revised Statutes of 1879), where the petitioner for compensation for improvements is described
It has been argued that the question is governed by other provisions of the statute. By section 2261 of the Revised Statutes of 1879, it is provided: “An injunction may be granted to stay the plaintiff from taking possession of the land until the value of the improvements is ascertained, or until the further order of the court.” The plaintiff here spoken of is the plaintiff in the action of ejectment. Section 2714 of the chapter of the same statutes relating to injunctions provides as follows: “When an injunction to stay proceedings is prayed in the same court where the proceedings were had, no notice of the application shall be necessary, unless prescribed by rules of court.” We apprehend that this provision applies only to proceedings which are pending at the time when the application for the injunction to stay such proceedings is made. Manifestly it could not be made to apply for the purpose of staying execution on a judgment which has been rendered at a former term; for there the proceeding is ended, except for the purpose of execution, and the parties are out of court.
The return, by stating that the plaintiff was a nonresident ; that no process was issued upon the filing of the petition for compensation for improvements, that plaintiff did not appear to defend against the same, but that an order was made upon an inquiry, as upon a judgment by default, inferentially shows that no notice of the proceeding of any kind was served upon him. It, therefore, impliedly shows that the order staying execution, and restitution was made by the court without jurisdiction, or, to say the least, it does not show that it was made with jurisdiction. It, therefore, states no defense to the petition for mandamus, and the demurrer to it should have been sustained. It follows
Judgment reversed and cause remanded.