Sims' Administrator v. Kelsay, 75 Mo. 68

Sims' Administrator v. Kelsay

75 Mo. 68 | Mo. | 1881

Sherwood, C. J.

No appeal was taken from the judgment rendered at the April term, 1878, and on the 3rd day ■of April, in favor of Evaline U. McCoy, for possession of the premises, and for damages for the detention thereof. After judgment rendered, and after the term had passed, the defendant, as the record recites, in pursuance of the' judgment, voluntarily surrendered possession of the prem*70ises to Evaline U. McCoy, but failed to pay the damages assessed ; that subsequently John Sims, the present plaintiff, was appointed and qualified as her administrator.

At the October term, 1878, the administrator moved the court that execution issue in his favor, as such administrator, for the damages, etc., assessed. This motion was granted, notwithstanding the objections of the defendant, who afterward offered to file a motion to set aside the order for the issuance of execution. Permission to file this motion was refused. In support of this motion he offered in evidence a record entry, made at the April term, and after the rendition of judgment, in these words:

“ Morgan Circuit Court, April Term, 1878, April 9th.

Evaline U. McCoy, -plaintiff, v. John B. Kelsay, defendant.

Now, at this day, comes the defendant, by his attorney, and by leave of the court files his petition for improvements made- on the premises sued for in this cause, and he asks the court for stay of execution, as to damages recovered against him.

And thereupon, by consent of plaintiff’s attorney, a stay of execution as to damages* is granted by the court and leave is granted plaintiff to answer petition for improvements, sixty days before next term.”

The foregoing entry was made upon the filing of the-following petition:

“ In the Circuit Court oe Morgan Countv, 1 April Term, 1878. /

Evaline D. McCoy, plaintiff, v. John B. Kelsay, defendant.

Defendant states to the court that after he entered into the possession of the premises claimed by the plaintiff’ in - her petition, the same were sold by John Sims, as administrator of the estate of John C. McCoy, and defendant pur*71chased and paid for the same, and received a deed therefor from said administrator; that the defendant was, by the declarations of said plaintiff, induced to believe, and did believe at the time of his said purchase, that he acquired thereby good title to the said property, as against the plaintiff, and so believing and relying on the declarations of the plaintiff, defendant has made, on said premises, lasting and valuable improvements, which are of the value of $200 or more; that plaintiff is wholly insolvent, and that if defendant is compelled to pay the damages awarded against him by the jury in this cause, he is without remedy and will lose the value of said improvements. Wherefore he prays the court to grant him a stay of execution as to the damages rendered, until inquiry can be had as to the value of said improvements, and that the defendant have judgment therefor, and that the amount be offset against plaintiff’s recovery, and for all other proper relief in the premises.”

The statutory provisions giving compensation for improvements do not apply to the action of unlawful detainer, but only to that of ejectment. R. S. 1879, p. 377, § 2259. The Morgan circuit court had no jurisdiction to make the entry of April the 9th, and its act in that regard must be deemed coram non judice. Besides, there had been, so far as concerned that court, a final disposition of the cause by judgment rendered, from which no appeal was taken. And it is very clear that the alleged consent of the former plaintiff, as shown by the entry referred to, could not confer jurisdiction when none existed before. Stone v. Corbett, 20 Mo. 350; Lindell's Adm'r v. Railway, 36 Mo. 543; Dodson, Adm'r, v. Scroggs, Adm'r, 47 Mo. 285; Cones v. Ward, 47 Mo. 289. A special statutory authority and jurisdiction, such as that conferred on the circuit court by the section aforesaid of the ejectment act, can neither be en*72larged nor extended to cases other than those for which particular provision is made therein.

' As the entry made at the April term was made without any warrant of law, as no right or jurisdiction existed to make it, the court very properly disregarded it, at the October term when ordering'execution to issue in favor of the administrator for damages, etc., the remainder of the judgment having been satisfied and complied with, by the defendant voluntarily surrendering possession of the premises to the plaintiff. At all events, the stay of execution was not designed to last longer than the October term, even if the order granting the stay was valid and binding, and that time had expired prior to the order for the issuance of execution.

And the execution “concerning the personalty” was properly ordered to issue in the name of the plaintiff as administrator. 1 R. S. 1879, § 2742; Gaston v. White, 46 Mo. 486.

III.

A good deal has been said about the equities of the defendant. "We have no evidence of the truth of the allegations of the defendant’s petition. Nor can the statements made in the motion the defendant offered to file to set aside the order that execution issue, be received as any evidence of the truth of the matter therein set forth. This is well settled. We make no ruling, however, bn any equitable rights defendant may have, as this, in the state of this record, would be improper for us to do. Judgment affirmed.

All concur.