McFerran v. Kinney , 18 Mo. App. 649 ( 1885 )

Opinion by

Ellison, J.

The record before ns is for a different action from that of the statement, brief and assignment of errors. We are told by the statement of the appellant, that on August 28,1882, plaintiffs began suit against defendant for the possession of certain lands in the complaint described; that after a trial before the justice of the peace, the case was appealed to the circuit court of Caldwell county and tried at the October term, 1882, thereof, the plaintiffs obtaining judgment. That defendant filed a motion for new trial and in arrest, which were each continued to the February term, 1883. That “onFebruary 3,1883, the petition in this cause was filed before H. W. Markham, J. P., of Caldwell county.” Said “petition” being a complaint of unlawful detainer. That after a change of venue “in this cause ” it was taken to the circuit court by certiorari ; that on March 2, 1883, after motions for “new trial and in arrest in the other suit were overruled, the defendant filed in this cause a plea in abatement,” and that a trial was had “in this cause” on the complaint for unlawful detainer; that a judgment was rendered for plaintiffs, and motions for new trial and in arrest being overruled, defendant appeals..

From this statement it appears plaintiffs, after judgment in October for possession and a continuance of the motions for new trial and in arrest, instituted a suit for unlawful detainer, which being taken to the circuit court on certiorari, defendant pleaded the first suit in abate-rent.

From the record before us, all this in regard to a second suit and -which, is styled “this cause,” is a myth. There is nothing in regard to a second suit in the record. The record simply shows a trial in October of the suit for possession for non-payment of rent, a judgment for plaintiffs, a continnance of tke motions for new trial and in arrest to the February term, when they were overruled, defendant appealing.

Appellant’s statement, brief and assignment of errors, all pertain to a suit, he says took place in March for unlawful detainer; while the record is in the cause tried in October for possession for non-payment of rent. There being, then, no statement’ brief or assignment of errors in the cause before us, we affirm the judgment, riections 3764, 3773, Revised Statutes, 1879.

All concur.