Hinniger v. Trax

Q-ill, J. This is an action of unlawful detainer to recover the possession of fifteen acres of land. The sworn complaint, in substance, alleges, that on and prior to June 19,1894, plaintiff was in possession of the land, and that on that day ‘’‘the defendant wrongfully and without force by disseizin obtained possession of said premises, and has ever since held and continues to hold possession thereof wrongfully and unlawfully after demand made in writing for the delivery of the possession thereof.” The rental value is alleged and judgment of restitution and for damages asked. On a trial by the court without a jury, plaintiff had judgment and defendant appealed. We fail to observe any substantial objection either to the form or matter of the complaint, as called to our attention in the first point in defendant’s brief. It does not allege that both parties were in actual possession of the land at the same time. It does state that plaintiff was in possession on the nineteenth day of June, 1894, and that on that day defendant entered on the land and ousted the plaintiff. But this is far from alleging a joint possession by the parties. The com [525] plaint fully complies with the requisites of the statute and is sufficient. Equally without merit is the objection to the return of the constable showing service of the written demand for possession. Said return shows service, both by delivering a copy of the written demand to defendant, Trax, in person, and also by leaving a copy with the man in charge of the ^premises. Either service was good and sufficient. R. S. 1889, sec. 5124. Plaintiff asked no instructions; but the defendant asked nine,- six of which the court gave and three of which were refused. To this the defendant’s counsel have, in a general way, objected. Of this it is sufficient to say that the instructions given fully and completely cover every possible phase of the case. The instructions are full of repetitions, and the six given were even more than was necessary, and in effect declared every proposition of law set out in those refused. It is further contended that the finding and judgment of the trial judge was wrong, because, it is said, the evidence did not show that plaintiff had, at the time of the alleged ouster, the actual possession of the land. This point, too, is not well taken. Plaintiff’s evidence tended to prove that a few months prior to the ouster he leased the land from one Wescott; that it was at the time, in part at least, covered with timber and brush; that plaintiff went about getting it ready for cultivation, and had, at the date of defendant’s entry, cleared away some of the underbrush, deadened the large timber, and planted a small portion in corn; that he began the erection of a log house and had it several logs high, and that he had marked out the lines of the fifteen acres and had it almost inclosed with a wire fence, when defendant hired two men to go onto the premises, stake out a tent, and reside there. At the time, too, defendant armed these men with a shot [526] gun and pistol, and directed them to keep away the plaintiff or others. Although plaintiff at the time did not reside on the fifteen acres, but lived three miles therefrom, the evidence tended to prove that he occupied the property, within the meaning of the law; and the evidence tends further to prove that defendant had knowledge of such occupancy, and that he (defendant) placed these hired men, armed with deadly weapons, on the land, so as to terrify and frighten away the plaintiff. We think there was ample evidence to make a case against the defendant. Miller v. Northup, 49 Mo. 397; Powell v. Davis, 54 Mo. 315; Bradley v. West, 60 Mo. 59; Scott v. Allenbaugh, 50 Mo. App. 130. Judgment affirmed. All concur.