Gerhart Realty Co. v. Weiter

BLAND, P. J. (after stating the facts). — 1. There are quite a multitude of errors assigned by defendant (appellant). The court instructed the jury that defendant ’s tenancy was from month to month and might be terminated by giving thirty days'’ notice in writing to .quit. Defendant contends that this instruction ig [253] nored his evidence to the effect that he was holding under a verbal lease for a term of eleven months. It may be granted that plaintiff and defendant, on April 23, verbally agreed that defendant’s term should be for eleven months, yet* his tenancy was from month to month for the reason the term was for less than one year. See. 3414, Revised Statutes 1899'. Under this section he was a tenant at will and his tenancy might be terminated at any time by giving thirty days’ notice in writing to quit, as provided by section 4110, Revised Statutes 1899. 2. Defendant insists that the notice to quit was not properly served. It was served on the wife of the defendant, who was found at his place of business on the leased premises and in charge of that business. The defendant was out of the State so that service of notice on him at that time was not only impracticable but impossible; in these circumstances the service on the wife was sufficient. Harris v. Railway, 40 Mo. App. 1. c. 255; DeGriverville v. Stolle, 9 Mo. App. 1. c. 187. 3. The defendant applied for a change of venue in the circuit court. In his application he alleged that the judge of Division No. 2 (where the suit was pending) was so prejudiced against him that he could not have a fair trial in said court. He did not stop here but went further and alleged that collectively and individually all, each and every one of the ten judges of the ten divisions of the circuit court of the city of St. Louis were so prejudiced against him that he could not have a fair trial in anyone of said divisions.- Not content with these allegations, he proceeded to allege that the inhabitants of the city of St. Louis were so prejudiced against him that he could not have a fair trial in said city. Applications for change of venue containing omnibus charges of prejudice discredit themselves. No evidence, whatever was offered to show that the inhabitants of the city of St. Louis were prejudiced against the defendant, and for this reason he [254] was properly denied á change of venne from the city of St. Louis. It is not permissible in an application of this hind to charge prejudice against the judge of any court other than the one to whom the applicationis addressed. Sec. 818, Revised Statutes 1899; State ex rel. v. Woodson, 86 Mo. App. 253; State v. Anderson, 96 Mo. 241, 9 S. W. 636. The affidavit was sufficient to disqualify the presiding judge,.who so ruled and transmitted the cause to Division No. 5 for trial. The original papers were taken from Division No. 2 to Division No. 5 and the cause tried on the original papers. Defendant contends that the clerk should have made a transcript and retained the original papers in Division No. 2. This contention was answered adversely to defendant by the Supreme Court-in the case of State v. Lehman, 81 S. W. 1118. 4. The sufficiency of the plaintiff’s affidavit for appeal from the justice’s court, where the .cause originated, is challenged. It contains every es-sential requirement of the statute and is sufficient. If it had been insufficient, it should have been challenged in the circuit court and an opportunity given the plaintiff to file an amended affidavit, if the one filed- was found insufficient. This was not done. It is too late to raise the question for the first time in this court. 5. There are a number of other assignments of error found in the brief of defendant. On examination we have found them to be trivial and devoid of merit. We think the case was properly tried and that the judgment was for the right party, therefore, it is affirmed. All concur.