Nelson v. Nelson

30 Mo. App. 184 | Mo. Ct. App. | 1888

Hall, J.

This was an action for forcible entry and detainer begun before a justice of the peace. The plaintiff had judgment against all the defendants for the recovery of the land, for two cents as damages, and. for two cents as monthly rents and profits. From this judgment the defendants appealed to, the circuit court, but the affidavit and bond for the appeal were made-and executed by only one of them. The appeal bond was defective also in being made to conform to the requirements of section 3042, Revised.Statutes, instead of section 2476-. The transcript of the justice’s record was filed in due time with the clerk of the circuit court. At the return term of the appeal the' case was continued on plaintiff’s application to the next succeeding term, and at such succeeding term the case was again continued on the plaintiff’s application to the following term. At the last-named term the plaintiff filed a motion to dismiss the appeal on account of defects in the affidavit and bond for the appeal, which motion the court overruled. The case was proceeded with to trial, which resulted in a judgment for the defendants.

For no “informality, insufficiency, or imperfection in the affidavit or recognizance ” should the court have dismissed the appeal, if the defendants had filed or offered to file a sufficient affidavit and recognizance. Hamilton v. Jeffries, 15 Mo. 618; Rev. Stat., sec. 2485. The defendants, however; did not offer to file a new affidavit or bond, and the court unconditionally denied the motion to dismiss the appeal. If we should reverse the judgment herein on account of the insufficiency of the affidavit or bond, we should have to remand the cause in order to permit the defendants to file a sufficient affidavit or bond, because we cannot, any more than could the circuit court have done, deprive the defendants of this right conferred by statute and recognized by .©nr Supreme Court. But if the judgment on the merits is. for the right party, should we reverse the judgment .■and remand the cause on account of any such defect in .the affidavit or bond? Clearly not; such course would .answer no good purpose, since the same judgment would after all have to be entered in the case. The question, therefore, for our determination goes to the merits of the case.

The plaintiff introduced evidence tending to prove that in 1874 the defendant’s ancestor, under contract with him, moved in the fence along his (the said ancestor’s) land so as to throw outside of said ancestor’s ■ enclosure a certain described strip of ground, twenty .feet wide, for the purpose of being used by the plaintiff •as a private road, and that he did, from that day to the ■ entry complained of, use the said strip of ground as a private road. The plaintiff had no actual possession of the strip of ground, but simply claimed it as his way or road. The circuit court held that, under such facts, the plaintiff could not maintain an action for the forcible ■ entry by defendants upon such strip of ground.

Our statute (Rev. Stat., sec. 2419) is: “If any -person shall enter upon or into any lands, tenements, or other possessions, with force or strong hand, or with weapons, or by breaking open the doors or windows, or other parts of a house, whether any person be in it or not, or by threatening to kill, maim, or beat the party in possession, or by such words or actions as have a natural tendency to excite fear or apprehension of danger, -or by putting out of doors or carrying away the goods • of the party in possession, or by entering peaceably, and then turning out by force, or frightening by threats or other circumstances of terror, the party out of possession, and detain and hold the same — in every such case, the person so offending shall be deemed guilty of a forcible entry and detainer, within the meaning of this ■ chapter.”

Is such an easement as the plaintiff claimed in the strip of ground, in suit included within the words, “or other possessions?” By an English statute a forcible entry was forbidden “into any lands or tenements or benefice of the holy church or other possessions.” In. construing the words, “or other possessions” of that statute it is said: “It seems clear, that no one can come within ■ the danger of these statutes, by a violence offered to another in respect of a way, or such like easement.” Woodfall’s Land. & Ten. (1 Am. Ed.) 535. And so we say of the. same words in our statute. The rule is, that no one can maintain an action of forcible entry and detainer who was not at the time off the dispossession in the exclusive possession of the land. Jamison v. Graham, 77 Ill. 94. To this rule certain exceptions are recognized. McHose v. Ins. Co., 4 Mo. App. 514. But one, in the mere use and enjoyment of a way or an easement, without more, has no such possession as will enable him to maintain the action.

Judgment affirmed.

All concur.