Bierkenkamp v. Bierkenkamp

Missouri Court of Appeals

Bierkenkamp v. Bierkenkamp

88 Mo. App. 445, 1901 Mo. App. LEXIS 75

CourtMissouri Court of Appeals

DecidedApril 9, 1901

StatusPublished

Cited by7 cases

This text of 88 Mo. App. 445 (Bierkenkamp v. Bierkenkamp) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bierkenkamp v. Bierkenkamp, 88 Mo. App. 445, 1901 Mo. App. LEXIS 75 (Mo. Ct. App. 1901).

Pincite

Opinion

BOND, J.

Unlawful detainers are'of two kinds: first, a willful holding over without force, after the expiration of a term; second, a wrongful disseizin without force of a prior possessor. In cases of the first class, no demand in writing for the delivery of the possession is required before the institution of the suit. In cases of the second class, such a demand is indispensable. R. S. 1899, sec. 3321; Anderson v. McClure, 57 Mo. App. 96; Building Ass’n v. Murphy, 75 Mo. App. 57. The admissions contained in the record, -that- the life estate,in the house and lot was vested in the plaintiff, constituted a sufficient proof of title and right to possession of the premises, if the defendant was a recusant tenant or a wrongful disseizor. The evidence disclosed that the defendant was let into possession during the life of her husband as his wife; that the tenancy of the husband could not have been longer than from month to month, and, hence, was terminable by a statutory notice. Broof further shows that upon the holding over by defendant [449]*449after her husband’s death, she was served with notice to quit and a demand for the possession of the premises, notwithstanding she refused to deliver the same.

Upon these facts, there was no error in the action of the trial judge in overruling the demurrer to the evidence interposed by defendant.

The learned counsel for appellant complains of the ruling of the court in permitting an amendment of the pleadings and process which showed a different spelling of appellant’s name —Burgenkamp and Bierkenkamp — so as to state it correctly. There was no error in this ruling. The words in question have substantially the same sound, and the variation in the two modes of spelling was wholly immaterial.

It is insisted that the court erred in doubling the damages for the reason that this was not specifically prayed in the complaint. This point is not well taken. The statute makes it the imperative duty of the court, in the case of a finding for the complainant in actions like the present, to give judgment for restitution of the premises and doubling the sum assessed as damages. R. S. 1899, secs. 3335-3340.

Binding no reversible error in this cause, the judgment herein is affirmed.

All concur.

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BOND, J.

Unlawful detainers are'of two kinds: first, a willful holding over without force, after the expiration of a term; second, a wrongful disseizin without force of a prior possessor. In cases of the first class, no demand in writing for the delivery of the possession is required before the institution of the suit. In cases of the second class, such a demand is indispensable. R. S. 1899, sec. 3321; Anderson v. McClure, 57 Mo. App. 96; Building Ass’n v. Murphy, 75 Mo. App. 57. The admissions contained in the record, -that- the life estate,in the house and lot was vested in the plaintiff, constituted a sufficient proof of title and right to possession of the premises, if the defendant was a recusant tenant or a wrongful disseizor. The evidence disclosed that the defendant was let into possession during the life of her husband as his wife; that the tenancy of the husband could not have been longer than from month to month, and, hence, was terminable by a statutory notice. Broof further shows that upon the holding over by defendant [449]*449after her husband’s death, she was served with notice to quit and a demand for the possession of the premises, notwithstanding she refused to deliver the same.

Upon these facts, there was no error in the action of the trial judge in overruling the demurrer to the evidence interposed by defendant.

The learned counsel for appellant complains of the ruling of the court in permitting an amendment of the pleadings and process which showed a different spelling of appellant’s name —Burgenkamp and Bierkenkamp — so as to state it correctly. There was no error in this ruling. The words in question have substantially the same sound, and the variation in the two modes of spelling was wholly immaterial.

It is insisted that the court erred in doubling the damages for the reason that this was not specifically prayed in the complaint. This point is not well taken. The statute makes it the imperative duty of the court, in the case of a finding for the complainant in actions like the present, to give judgment for restitution of the premises and doubling the sum assessed as damages. R. S. 1899, secs. 3335-3340.

Binding no reversible error in this cause, the judgment herein is affirmed.

All concur.

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88 Mo. App. 445, 1901 Mo. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bierkenkamp-v-bierkenkamp-moctapp-1901.

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