Holliday v. Doyon

Gamble J., delivered the opinion of the court. The appellant, Holliday, calling himself administrator of Henry J. Fuchs, filed his complaint before a justice of the peace in Buchanan county against Doyon, alleging that “the defendant wilfully and without force, held over a certain room, &c., (describing the property and its situation) after the termination of the time for which it was let to him} [409] and after demand made in writing for the delivery of the possession thereof by the plaintiff who has the legal right to the possession.” The defendant appeared before the justice, and moved to dismiss the complaint because the plaintiff sued as administrator, and for other causes assigned, and this motion being overruled, the parties proceeded to trial and the plaintiff had judgment. The defendant appealed to the circuit court, and there renewed his motion to dismiss-, which was sustained, and the plaintiff appealed to this court. The only point made is whether the circuit court erred in dismissing the complaint because the plaintiff sued as administrator. ■ If under the complaint, the plaintiff could only recover by showing a demise, by his intestate, the complaint would be bad, as it would be necessary for him then to show a derivative title to the possession: Holland vs. Reed 11 Mo. R. 605; Picot vs. Masterson 12 Mo. R. 303. But if 'under this complaint, the plaintiff might show a demise by himself to the defendant, then the introduction of the words of description (“Administrator of the estate of Henry J. Fuchs”) in the commencement of his complaint, did not authorize the circuit court to dismiss it. That he might show a demise by himself to defendant under this complaint, there can be no doubt, and therefore the action of the circuit court was premature and erroneous, and its judgment, with the concurrence of the other judges, is reversed and the cause remanded.