Ewing v. O'Malley

Missouri Court of Appeals

Ewing v. O'Malley

82 S.W. 1087, 108 Mo. App. 117, 1904 Mo. App. LEXIS 17

CourtMissouri Court of Appeals

DecidedNovember 1, 1904

StatusPublished

Cited by4 cases

This text of 82 S.W. 1087 (Ewing v. O'Malley) 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

Ewing v. O'Malley, 82 S.W. 1087, 108 Mo. App. 117, 1904 Mo. App. LEXIS 17 (Mo. Ct. App. 1904).

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Opinion

BLAND, P. J.

(after stating the facts). — 1. Two questions are presented by the appeal; one as to the sufficiency of the service of notice to quit, the other as to the legal effect of the service of the notice of December 24, 1903.

[121]*121In Van Studdiford v. Kohn, 46 Mo. App. 1. c. 439, this court, in respect to the service of notice to quit on a tenant from month to month, said: “We have repeatedly held that, where the statute requires service of a written notice, and no mode of service is provided for by law, the statute contemplates personal service. The statute in this case-does not provide for the manner of service, and would require personal service, at least in all cases where such notice can conveniently be given.' Further on the court said: “But none of the American cases cited to us go to the extent of holding the service of a notice sufficient, which was neither personal nor made upon a parly upon whom, under the statute, the service of a summons would have been availing. If, however, it is shown that personal notice on the defendant was impracticable, or his whereabouts' were unknown to the plaintiff, and a copy of the notice was left with the person in charge of his place of business, and the agent with whom the copy was left actually made a timely delivery of the notice to the defendant, the service will be sufficient. Langan v. Schief, 55 Mo. App. 213. There was evidence tending to show that the plaintiff’s agent did not know the whereabouts of the defendant when he undertook to serve the notice and, further, that the notice was placed in the hands of defendant on the day it was left with his agent at his place of business, and we are not prepared to say that there was no evidence authorizing the court to find that the notice was in fact personally served on defendant.

2. If nothing more appeared, the giving of the second notice to quit, after the expiration of the first, should be deemed a waiver of the first. Nagel v. League, 70 Mo. App. 487; Morgan v. Powers, 83 Hun 1. c. 302; Doe v. Palmer, 16 East 53 But at the time the second notice Avas^given, suit had been commenced based on the first notice, and the plaintiff continued! thereafter to prosecute the suit. For the reason, the defendant could not suppose that plaintiff intended to abandon a notice [122]*122on the foundation of which he was proceeding to turn him out. 2 Taylor, Landlord & Tenant, sec. 486. Discovering no reversible error in the record, the judgment is affirmed.

All concur.

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BLAND, P. J.

(after stating the facts). — 1. Two questions are presented by the appeal; one as to the sufficiency of the service of notice to quit, the other as to the legal effect of the service of the notice of December 24, 1903.

[121]*121In Van Studdiford v. Kohn, 46 Mo. App. 1. c. 439, this court, in respect to the service of notice to quit on a tenant from month to month, said: “We have repeatedly held that, where the statute requires service of a written notice, and no mode of service is provided for by law, the statute contemplates personal service. The statute in this case-does not provide for the manner of service, and would require personal service, at least in all cases where such notice can conveniently be given.' Further on the court said: “But none of the American cases cited to us go to the extent of holding the service of a notice sufficient, which was neither personal nor made upon a parly upon whom, under the statute, the service of a summons would have been availing. If, however, it is shown that personal notice on the defendant was impracticable, or his whereabouts' were unknown to the plaintiff, and a copy of the notice was left with the person in charge of his place of business, and the agent with whom the copy was left actually made a timely delivery of the notice to the defendant, the service will be sufficient. Langan v. Schief, 55 Mo. App. 213. There was evidence tending to show that the plaintiff’s agent did not know the whereabouts of the defendant when he undertook to serve the notice and, further, that the notice was placed in the hands of defendant on the day it was left with his agent at his place of business, and we are not prepared to say that there was no evidence authorizing the court to find that the notice was in fact personally served on defendant.

2. If nothing more appeared, the giving of the second notice to quit, after the expiration of the first, should be deemed a waiver of the first. Nagel v. League, 70 Mo. App. 487; Morgan v. Powers, 83 Hun 1. c. 302; Doe v. Palmer, 16 East 53 But at the time the second notice Avas^given, suit had been commenced based on the first notice, and the plaintiff continued! thereafter to prosecute the suit. For the reason, the defendant could not suppose that plaintiff intended to abandon a notice [122]*122on the foundation of which he was proceeding to turn him out. 2 Taylor, Landlord & Tenant, sec. 486. Discovering no reversible error in the record, the judgment is affirmed.

All concur.

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82 S.W. 1087, 108 Mo. App. 117, 1904 Mo. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-omalley-moctapp-1904.

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