McDermott v. Dwyer

GOODE, J. — Plaintiff began this action on the thirty-first day of October, 1899, by attachment before James J. Spaulding, a justice of the peace in St. Louis, to recover rent from the defendant There was first a change of venue to William J. Hanley, another justice, and afterwards from Hanley to a third one, Michael J. Cullinane. The premises in question had been leased by plaintiff to defendant for a term of five years, commencing August 1, 1899, at a rental of thirty dollars per month in advance. This lease was in writing. The rent was paid up to the first day of November. The ground of attachment was that the defendant intended to remove his property from the leased premises. The affidavit was sworn to before Spaulding, the justice .of the peace in whose office the action was begun, but he subscribed his jurat to the affidavit as notary public instead of justice of the peace. A point is made about this. At the time the suit was begun, an account was filed, claiming rent for the premises, to-wit, No. 2424 North Sarah street, for the months from November, 1899, to September, 1900, inclusive, amounting to three hundred and thirty dollars. The affidavit was full enough, but the written lease, although exhibited to Spaulding before he issued the writ of attachment, was not left with him. Subsequently it was deposited or filed, as a witness testified, with William J. Hanley, transmitted by him with the original papers to Cullinane, used in evidence on the trial before that magistrate, and sent with his transcript and the files to the circuit court when an appeal was taken, but no docket entry of its filing appears to have been made by either justice. Plaintiff’s attachment was sustained, both on the trial before the justice of the peace [188] and the one in the circuit court. Judgment was entered in bis behalf in the latter court for one hundred and twenty dollars, being the rent up to the time he got a new tenant. It is provided that the affidavit, in cases of this kind, may be made before a justice or clerk of a court of record having jurisdiction of ordinary actions by attachment. R. S. 1899, sec. 4123. Whether this clause is so far mandatory that an affidavit before a notary public, or other officer empowered to administer oaths, would be bad, is unnecessary to decide. Plaintiff made his affidavit before the justice in whose office he lodged his complaint The fact that said justice chose to attach a jurat in his capacity as notary public, does not affect plaintiff’s rights. The lease was filed with William J. Hanley and became part of the papers in the case before the jury was sworn or the trial commenced, which cured the omission to file it in the first place. R. S. 1899, sec. 3853; Buzzard v. Hapeman, 61 Mo. App. 464. In the eases cited by appellant, holding no jurisdiction was acquired by the magistrate from plaintiff having failed to file the instrument sued on, said instrument was filed neither when the action was begun nor before the trial. Olin v. Zeigler, 46 Mo. App. 193; Phenix Ins. Co. v. Foster, 56 Mo. App. 197. The statute is clear on this point. Nor was it necessary there should be a docket entry showing the filing of the lease, if it was attached to and among the original papers. Olin v. Zeigler, supra; Baker v. Henry, 63 Mo. 517. There is much insistence on the point that the action was prematurely brought because the rent was paid up to November and no more was due or had been demanded. But the section of the statutes under which the action was begun, provides, in so many words, that in certain contingencies, one of which is when a tenant is removing or intends to remove his property from the leased premises, an attachment for rent will lie “whether the same be due or not, or whether [189] the same be payable in money or other thing, if the rent be due within one year thereafter.” All the rent sued for in this case was due, inside of a year after the action was instituted. A demand is only necessary when the rent is due and unpaid; because it would be obviously absurd to require a demand for rent not due, as a condition precedent to maintaining an action for it. The cause of action was stated with sufficient definiteness to apprise the defendant of what he was called on to defend. The judgment is affirmed. All concur.