4 Mo. App. 160 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This is an action brought upon a lease to recover rent and taxes, the rent claimed being at the rate of $26.66 for every six months, from May 15, 1868, to the time of bringing the suit, October 9, 1875, and the taxes for the same period paid as alleged by plaintiffs, being $600 in amount. Judgment is asked for $995, rent and taxes. The only defence set up was a judgment obtained by the plaintiffs before a justice of the peace, upon a suit brought on October 9, 1875, for possession of the premises and $53.53, rent due under the lease, from May 15, 1874, to May 15, 1875, against this defendant and several tenants who held under him. The reply alleged that there was no such judgment. On the trial the plaintiffs admitted that they had obtained judgment for possession of the premises and for rent, as set up in the answer, and upon this the case was submitted to the court as a jury. The court found for the plaintiffs in the sum of $636.42 damages, which amount, it appears, included the respondent’s claim of taxes, and so much of the rent as was due for the period between May 15, 1875, and October 9, 1875, the date of bringing suit. The defendant appealed, but there is no appeal on the part of the plaintiffs.
It is contended by the appellant that the former judgment is a bar to the present action; that the taxes here sued for are rent, and that the respondents cannot split their demand. The term “ rent ” is used in different senses. In its largest signification it may mean all the profit issuing yearly out of lands, in return for their use. But as ordinarily employed, in law, it does not include taxes, and they are generally paid under a separate covenant. The action
It is further contended that upon the pleadings it was not necessary for the appellant to show that the former judgment was a bar; that as the respondents, in their reply, denied that there was any such judgment, this was the real issue, and judgment should have gone for the defendant below. It is true that the issue which the trial court should try is the issue made by the pleadings, and not some issue which is not made by the pleadings. But, though it is error in the court to try issues not made by the pleadings, it is not error in the court to pass upon the legal effect of allegations and to disregard immaterial issues which 'are made by the pleadings. On the contrary, it is the duty of the court to sift the issues and to treat as surplusage the allegations which are immaterial; otherwise, time would be wasted in trying issues irrelevant to the case. The paper-issues should be the real issues on the trial; but though a party at the trial cannot go outside of the issues on paper,
The judgment is affirmed.