65 Mo. App. 502 | Mo. Ct. App. | 1896
The petition in this case states that defendant purchased a city lot in Springfield, Missouri, .from one Horine on the thirty-first of August, 1892, which was incumbered by the lien of a judgment, against his grantor, rendered on the twelfth day of March, 1892; that on the eighteenth of January, 1893, defendant executed a deed of trust on said city lot to-
“ Plaintiffs further state that they went into possession of said real estate under deed from R. P. Halde-man and wife, and that neither W. E. Howser as trustee, the National Investment Association, R. P. Haldeman, nor these plaintiffs knew anything about the judgment aforesaid, or the sheriff’s sale and deed under said judgment, until after the twenty-first day of May, 1894.
‘‘Plaintiffs state that on the fifteenth day of March, 1894, a general execution was issued on the judgment above mentioned in favor of JamesBaker and againstthe said S. H. Horine, by virtue and in pursuance of which said real estate was sold by the sheriff of said county on the twenty-first day of May, 1894, to Maggie C. Baker, and was conveyed to her by deed in due form on the twenty-fourth day of May, 1894, by which she became the owner of the real estate above described, and by means of the lien of said judgment on said real estate, sheriff’s sale and deed as aforesaid, each of the covenants contained in said deed of trust became broken, breached and violated, and the defendant, John 0. Keet, is therefore justly indebted to the plaintiff in th© sum of $1,000, the amount of money so loaned to him, with the interest thereon from the date of said bond at the rate of eight per cent per annum, for which plaintiffs ask judgment with costs.”
The answer of defendant denied plaintiffs’ capacity
“Whereupon the plaintiffs, to sustain the issues on their part, offered evidence tending to prove the allegations of their said petition, and also introduced evidence tending to prove that they paid M. C. Baker $600 for the «outstanding title, and to which proof defendant then sand there at the time, before the introduction thereof, objected thereto as incompetent, irrelevant and immaterial, and because not responsive to the petition; which objections were overruled, and defendant then and there at the time duly excepted.
“And at the close of such evidence the defendant requested the court to give an instruction or declaration of law, in the nature of a demurrer to the evidence, in words and figures as follows, to wit: The court •declares the law to be, that plaintiff can not recover in this action; which the court refused to give, and to its ■action in so doing the defendant then and there at the time duly excepted.
“Whereupon the defendant asked the court to give the following declarations of law:
“I. The court declares the law to be that plaintiff «can not recover in this case for the reason that there •has been no legal evidence adduced showing, nor tend*505 ing to show, that there has been an actual eviction of plaintiffs in this case, or what is equivalent thereto in law.
“II. The court declares the law to he that plaintiffs are only entitled to recover nominal damages in this case, and nothing more.
“Which instructions the court refused to give, and to its action in so doing the defendant then and there at the time duly excepted.
“Whereupon, without giving any instructions on the part of the plaintiffs or defendant, the court rendered judgment for the plaintiffs” for $600, being the amount paid by them for the superior and outstanding title.
The controlling question on this appeal is whether or not the petition states a cause of action for more than nominal damages. Appellant claims it does not. After verdict the sufficiency of a petition, which was not challenged before the trial by a demurrer or motion to make definite, is judged by a different rule from that applied when such objections are interposed before the trial. A petition which impliedly states a cause of action, when not attacked by demurrer or motion to make definite, will be held good after verdict. People’s Bank of New Orleans v. Scalzo, 127 Mo. 164. The imperfect statement of a cause of action can not be reached by objection to the introduction of testimony thereunder, nor by instruction. Neither can it be assailed upon appeal. On the other hand, the omission of essential averments in the statement of a cause of action may be taken advantage of in either of these modes, or for the first time upon appeal. Unless, therefore, the petition in this case wholly fails expressly or impliedly to state a cause of action for substantial damages, the point must be ruled against appellant.
It is essential to a recovery of substantial damages
The judgment will be reversed and the cause remanded.