98 Mo. App. 584 | Mo. Ct. App. | 1903
This is an action which was brought before a justice of the peace under the landlord and tenant statute to recover possession of the space or stall number twenty-five on the outside of the Kansas City market house, and also the rent due thereon.
• The evidence presented by the record before us tends to show us that Kansas City leased the said space to L. S. Walters for the term of one year beginning on the first day of April, 1893. That at the commencement of said term there was no- building on said space and that during his tenancy the said city permitted him to construct and erect a building thereon for his own use; that after the expiration of said term he, with the consent of said city, held over and continued in possession of said space and the building thereon as tenant thereof; that while so in possession he transferred said space and building to the plaintiff and placed it in possession thereof; that plaintiff while so in possession of said space and building paying rent to the said city, leased the same to defendants and placed them in possession under said lease, and that defendants after being so put in possession never surrendered the same to plaintiff; that at the time of the commencement of this suit defendants owed the plaintiff $68.30 rent, and that plaintiff demanded the same after it became due. The cause was removed by appeal to the circuit court where plaintiff had judgment for $421.49, and the defendants appealed.
It may be here stated that twenty-four days after
The defendants requested the court by an instruction to declare that as there were two suits between the same parties for the same thing* it should not allow the plaintiff to proceed. This request was, we think, properly refused. The grounds upon which courts abate subsequent suits is that they are unnecessary, therefore, vexatious and oppressive. State ex rel. v. Doughtery, 45 Mo. 296; Jacobs v. Lewis, 47 Mo. 344; Thompson v. Holden, 117 Mo. 118; Wardey v. Henry, 117 Mo. l. c. 541; State ex rel. v. Moss, 35 Mo. App. l. c. 447. "Where two suits are brought at different times between the same parties and for the same thing, that first brought occupies the ground -and that subsequently brought will be abated. The rule of Us pendens can have no application in a case like this where it is sought to abate the first suit because of the bringing of a subsequent one, even though such subsequent suit be between the same parties and for the same thing.
The defendants in the circuit court for the first time made a tender of the amount of rent they thought was then due plaintiff under the terms of their lease. This was not accepted by plaintiff. The defendants further requested the court to declare that after the tender of all rent and interest thereon and refusal by plaintiff, and the deposit thereof with the -sheriff and payment of-all costs, that the plaintiff could not further maintain its action. This instruction was properly refused because the statute (section 4133) expressly provides that upon the return of the summons executed, the justice shall proceed to hear the cause; and if it shall
We neither find nor have we been, cited to any precedent by which we may be guided in determining this question. The manifest purpose which- the Legislature had in view in the enactment of this statute was to provide a speedy and effective remedy by which the landlord may recover possession where default has been made by the tenant in the payment of the rent. If a suit is brought by the landlord under this statute, the tenant may avoid a forfeiture if he will make the tender and at the time required by it, but he can not be allowed afterwards to make such tender and thereby avoid the forfeiture, for to allow him to do so would be to encourage delay and thus thwart the legislative purpose in enacting the statute. A construction of the statute under which a subsequent tender would avoid a forfeiture would have the effect to encourage appeals to be taken for the sole purpose of securing delay, and is therefore not to be tolerated.
Complaint is made that the judgment is for an amount which exceeds the jurisdiction of the court. The
There are several other questions discussed in the briefs of counsel, but as they are not raised by the appeal we can not notice them here.
It results that the judgment will be reversed and cause remanded with directions to the circuit court to give plaintiff judgment for possession alone without the rent due — leaving it to remain as unadjudicated matter.