Opinion
No. 27955.
June 20, 1950. Rehearing Denied July 18, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JAMES F. NANGLE, J.
Joseph Boxerman, St. Louis, Joseph Nessenfeld, St. Louis, for appellant.
Morris A. Shenker, St. Louis, for respondent.
On August 19, 1949, plaintiff instituted this action by injunction. The petition alleges in substance that the plaintiff is the owner of an apartment building located at 504 North Euclid, St. Louis, Missouri; that on or about December 1, 1947, plaintiff appointed the defendant as his agent to manage the apartment building, to collect the rents therefrom, and to generally perform such duties as are customarily incident to management of an apartment building, and in consideration of such services the defendant received for occupancy a three room furnished apartment in the building; that on or about July 22, 1949, the plaintiff terminated said appointment of defendant, but that the defendant has disregarded notice of termination and is falsely claiming to be the owner of the premises. The petition alleged further that the defendant was interfering with his ownership, control, and possession of the property, and he, therefore, sought the relief of the court of equity by way of injunction to restrain the respondent from interfering in any manner with the plaintiff's ownership, control, and possession of the premises in question. Thereupon the court issued a temporary restraining order. On September 1, 1949, defendant filed a motion to dismiss on the grounds, (1) that the petition does not state facts sufficient to constitute a cause of action or warrant granting the relief prayed for in the petition; (2) that the plaintiff has an adequate remedy at law; (3) that the plaintiff is seeking to vary the effect of written documents and to nullify the effect and force of certain deeds and conveyances executed at a prior date; and (4) that the plaintiff does not come into court with clean hands. Thereafter and while that motion was pending, plaintiff filed an affidavit asking for a citation of defendant for contempt, and a citation was issued by the court. The motion to dismiss was argued and submitted. It was later agreed that the defendant would file an answer, but that this would not prejudice defendant or waive the motion to dismiss. The defendant did file an answer and also filed a cross bill wherein defendant asserted that she was the owner of the property in question and that plaintiff was falsely assuming ownership and preventing her control and operation of the premises and seeking to interfere with her quiet enjoyment of the property. And defendant asked for an injunction to restrain and prevent the said acts of the plaintiff. Thereafter plaintiff filed a motion for a more definite statement by defendant, and a motion to strike defendant's cross bill, and to dismiss the same. All of these motions were submitted to the court but it is plaintiff's contention that they were submitted with the understanding that they would be disposed of with the cause when it was heard on its merits.
While these matters were so pending and on December 15, 1949, in the absence of plaintiff's attorney, the court overruled plaintiff's motion for a more definite statement, and sustained plaintiff's motion to strike and his motion to dismiss the defendant's cross bill. The court further sustained with prejudice the defendant's motion to dismiss the plaintiff's petition, and of its own motion dissolved the restraining order, and dismissed the citation for contempt.
Plaintiff filed a motion to set aside the order of court dismissing his petition with prejudice, which motion the court overruled. Plaintiff appeals.
The issues were very much confused by the filing of defendant's answer and cross bill while her motion to dismiss was pending and undisposed of, and then the filing by plaintiff of motions attacking the answer and cross bill. However, it is very clear from the testimony of plaintiff's attorney given on a motion to set aside the order dismissing plaintiff's petition, and the colloquy between the court and respective attorneys on the hearing of that motion, that the court had in mind that the plaintiff was not entitled to maintain an injunction suit because under the pleadings both plaintiff and defendant were seeking to try the title to real estate, and that could not be done in an injunction suit. And if the petition had sought to have the title adjudicated, the ruling of the trial court would have been proper. But neither the plaintiff nor the defendant sought to try the title to the property, except as it was incidental or collateral to their diverse claims of the right of management, control and possession. The ruling of the trial court which disposed of the case was on defendant's motion to dismiss. And while the motion to dismiss, which takes the place of a demurrer under our former practice, admits the allegations of the petition for the purposes of that motion, it does not admit the truth of those allegations for all purposes. It is a limited admission only, and is no more or less than a claim by the defendant that even if those allegations were true, nevertheless they would be insufficient to constitute a cause of action against the defendant.
It is the established rule that equity may enjoin the wilful and deliberate actions of a trespasser on real estate, when those actions are continuous. St. Louis Smelting Refining Co. v. Hoban, Mo.Sup., 209 S.W.2d 119; Mexico Refractories Co. v. Roberts, Mo.Sup., 161 S.W.2d 420. There are many other cases so holding.
In the case of Dillard v. Sanderson, 282 Mo. 436, 222 S.W. 766, it was held by the Supreme Court en Banc that a suit to enjoin a mere trespass, and a mere injunction to restrain a trespass upon land does not involve title to real estate. That case involved the question of appellate jurisdiction, but the reasoning is applicable here. It was said by the Supreme Court en Banc in the case of Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, 775 on the question of appellate jurisdiction, as follows: "One further observation. In applying the constitutional provision, probably the greatest difficulty encountered has been in determining when a judgment does directly affect title. The long line of injunction cases to restrain trespass on real estate is a good illustration. In these cases usually the paramount and many times the sole issue is over title. The defendant answers, admitting the acts complained of, but justifies on the ground that the land was his and he had a right to do them, and yet the ultimate issue is whether the defendant shall or shall not be enjoined from doing the acts. No direct title relief is prayed. For nearly 30 years the rule was unsettled, wavering. In Ripkey v. Gresham, 279 Mo. 521, 214 S.W. 851, it was said there was no question but that title was involved, but in Dillard v. Anderson, supra, 282 Mo. 436, 222 S.W. 766, the court in banc firmly settled the matter, holding that in such cases title is only collaterally in issue, and not involved in the constitutional sense."
We are of the opinion that the purport of plaintiff's petition was to obtain the management, control and possession of the apartment building he claimed to own and for rents collected by the defendant, and not to try the title to the real estate. No such relief was asked for in the petition. Therefore, while it would be error for the trial court to dismiss the plaintiff's petition on the ground that the title was involved in the case, nevertheless if there was a good reason urged why plaintiff could not prevail we should not interfere with the judgment.
The defendant contended, and one of the grounds stated in her motion to dismiss was, that plaintiff has an adequate and full remedy at law, and cites the case of Morris v. Maheras, Mo.App., 197 S.W.2d 998. We see no escape for plaintiff from the law as announced in that case. In that case the plaintiff alleged in his petition that he was the owner of a cafe; that he employed the defendant to operate the cafe, and defendant was to receive as compensation one-half of all profits from the business: that plaintiff had notified defendant of the termination of that agreement, but defendant failed and refused to vacate or surrender the premises, and plaintiff prayed for injunctive relief. Those facts are strikingly analogous to the allegations in the petition in this case. The Springfield Court of Appeals held that injunction was not a proper remedy in view of Section 2833, R.S.Mo., 1939, Mo.R.S.A. That section provides: "When any person shall willfully and without force hold over any lands, tenements or other possessions, after the termination of the time for which they were demised or let to him, or the person under whom he claims; or when premises are occupied incident to the terms of employment and the employee holds over after the termination of such employment; or when any person wrongfully and without force, by dissension, shall obtain and continue in possession of any lands, tenements or other possessions, and after demand made, in writing, for the delivery of the possession thereof by the person having the legal right to such possession, his agent or attorney, shall refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer." (Emphasis ours.)
That section of the statutory law was amended in 1939, Laws 1939, p. 338, by the addition of the words above emphasized. The amendment could only have been made by the Legislature to cover a situation such as we have here, and such as was involved in the case of Morris v. Maheras, supra. It affords a full, complete and adequate remedy at law for the very relief plaintiff is seeking here by injunction. If the defendant in this case has any meritorious defense to the charges in the petition she would be entitled to a jury trial. We think the law as announced in the case of Morris v. Maheras, supra, is sound and we are governed thereby.
The case of Landrum v. McMinds, 205 Mo.App. 66, 218 S.W. 899, which apparently supports plaintiff's contention that injunction is a proper remedy in this case, really does not lend such support. That case was decided in 1920, long before the amendment to what is now Section 2833. Before that amendment injunctive relief was the only adequate relief that a plaintiff could resort to obtain possession, control and management of his property from an employee holding over and refusing to surrender the property after the termination of the employment. But since that amendment a plaintiff situated as this plaintiff claims to be, has a legal remedy that would afford full and adequate relief. Of course, the remedy by injunction still exists to prevent a continuous trespass on one's property, but Section 2833 creates an exception to that mode of remedy in cases "when premises are occupied incident to the terms of employment and the employee holds over after the termination of such employment", and in those cases injunction does not lie because the plaintiff has a legal remedy by unlawful detainer which affords complete and adequate relief. In the second clause of the petition plaintiff says that he "appointed the defendant as his agent to manage the said premises," etc. This was an employment of the defendant by plaintiff, and thereafter and after the employment was terminated the defendant refused to heed her discharge and continues to hold over and occupy and manage the property. There is no merit in plaintiff's contention that defendant only occupies one small apartment of the building. True, she was given the occupancy of one apartment as remuneration, but it was remuneration for her managing and collecting the rents for the whole building. Clearly, she comes within the terms of Section 2833 and plaintiff, if he has the rights he claims, has a legal remedy under the unlawful detainer statute, and the court properly ruled that plaintiff's petition be dismissed.
The conclusions we have reached would lead us to affirm the judgment except as to the dismissal of plaintiff's petition with prejudice. The order should have been that plaintiff's petition be dismissed without prejudice. Section 101 of the Civil Code of Missouri, Laws 1943, p. 385, Mo.R.S.A. § 847.101, provides as follows: "A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify."
In this case the court did not intend to foreclose the plaintiff from bringing another and different action. On the contrary, at the hearing of plaintiff's motion to set aside the order dismissing the petition, etc., plaintiff's attorney, addressing the court, said, "Well, you have got here 'Defendant's motion to dismiss plaintiff's petition sustained with prejudice.' I can't bring another action for the same reasons or grounds alleged in the petition. I am completely put out of court by Your Honor's ruling." The court replied, "From this relief, I think that is correct; this type of action." Later the court further said, "I may be entirely wrong but I would be glad to hear it under a different type of action." Section 101 provides that a dismissal with prejudice operates as an adjudication upon the merits. See State ex rel. McMonigle v. Spears, Mo.Sup., 213 S.W.2d 210: Dee v. Stahl, Mo.App., 219 S.W.2d 883. In this case the court was not adjudicating the merits of the controversy, but was ruling merely that the facts plead did not warrant injunctive relief. If plaintiff substantiates by evidence the charges contained in this petition in an unlawful detainer action he has a meritorious case. The judgment as entered is inconsistent with the views as expressed by the court.
The judgment should be reversed and the case remanded with directions to the trial court to amend and modify its final judgment as of the date it was entered to show that the motion to dismiss plaintiff's petition be and the same is sustained without prejudice. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.