Bernecker v. Miller
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. The facts are stated in the opinion of the court. I. On the appeal bond read in evidence by the plaintiff, together with the allegations of the petition, the plaintiff could not recover the rents and profits accruing before the justice. H. The only breach of the conditions of the bond is that the defendant failed to prosecute the appeal with effect.
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Appeal from St. Louis Circuit Court. The facts are stated in the opinion of the court. I. On the appeal bond read in evidence by the plaintiff, together with the allegations of the petition, the plaintiff could not recover the rents and profits accruing before the justice. H. The only breach of the conditions of the bond is that the defendant failed to prosecute the appeal with effect. In a suit on a recognizance or appeal bond, to authorize a recovery, proper breaches should be assigned, and the resulting damages alleged and proved. There is no breach alleged for non-payment of rents and…
1Opinion of the CourtBliss, Judge
Respondent obtained a judgment against defendant Miller in an action for unlawful detainer, before John Bray, justice of the peace, for dispossession, rents, etc. He made affidavit and filed bond for appeal; but, failing to bring up his transcript, the plaintiff produced it and moved to dismiss the appeal, which was done, and the action of the court was sustained by this court. (Bernecker v. Miller, 37 Mo. 498). Afterward the justice issued a writ of restitution and execution, for damages and costs, and for rents and profits. Defendant Koehler paid $77.55 upon the execution, which nearly…
2Cases cited1 opinion
- Bernicker v. MillerSupreme Court of Missouri · 1866
3Cited by2 opinions
- The Texas Co. v. Wax and So. Sur. Co.Missouri Court of Appeals · 1931
- Hastings v. HennesseyMissouri Court of Appeals · 1894