# Federated Mortgage & Investment Co. v. Jones

> Supreme Court of Missouri · November 20, 1990 · 798 S.W.2d 719

URL: https://www.frixlaw.com/law-library/cases/9776595

## Case

- **Full name:** FEDERATED MORTGAGE AND INVESTMENT COMPANY, Appellant, v. Stephen JONES and Sharon K. Jones, Defendants, and Eugene D. Brown Company, Realtors, Respondent
- **Court:** Supreme Court of Missouri
- **Decided:** November 20, 1990
- **Citations:** 798 S.W.2d 719; 1990 Mo. LEXIS 106; 1990 WL 179951
- **Precedential status:** Published
- **Opinion:** Dissent by Seiler
- **Judges:** Covington, Blackmar, Robertson, Rendlen, Holstein, Seiler, Billings
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776595

## Opinion text

ROBERT E. SEILER, Senior Judge,
dissenting.
For the following reasons, I believe the judgment should be affirmed and therefore respectfully dissent.
In order to prevail in this garnishment proceeding, plaintiff must have been entitled to its judgment in the underlying rent and possession action. The statutory action of a landlord for rent and possession (now section 525.020, RSMo) is over 100 years old. 1 It has always required certain averments in the statement or petition. One is that the petition be verified by affidavit.
The action is a summary one. Only 5 days need elapse between service of summons and return date. If the landlord prevails, the court must issue execution to put the landlord in immediate possession, which the sheriff must do within 5 days of receiving the execution as well as satisfying the rent due from the goods and chattels of the defendant. All of this can be done on the petition alone if there is no response. People can be put out on the street and their furniture seized in less than 10 days.
Perhaps it is because the remedy can be so swift and drastic that the legislature has always required that the petition be verified, a requirement which may have been thought to “assure the truth of the pleading,” American Industrial Resources, Inc., v. T.S.E. Supply Co., 708 S.W.2d 806, 808 (Mo.App.1986), and Drury Displays v. Board of Adjustment, 760 S.W.2d 112, 114 (Mo. banc 1988). In Emert v. Waldman, 186 S.W.2d 42 (Mo.App.1945), the statement in a landlord’s action for rent and possession was not verified, either by the landlord or his agent. The court held that “[t]he record herein conclusively shows that the action was not instituted in accordance with the requirements of the statute ... compliance with which is necessary to give the court jurisdiction.” Id. at 46 .
While it is true the associate circuit judge’s division of the circuit court has jurisdiction to hear and decide a landlord’s action for rent and possession, that general proposition does not meet the issue here. Unless the statement filed meets the statutory requirements there is nothing for the general jurisdiction to act on. It is as though one were trying to use a pay telephone without first inserting the necessary coin. The telephone is there, ready to go, but without the coin (as with the proper statement in the rent and possession case), it cannot operate.
We enforce strictly our requirement that the movant in a motion for relief following conviction after trial (Rule 29.15(d)) verify the motion. Failure to do so requires dismissal. Vinson v. State, 800 S.W.2d 444 at 447-48 (Mo. banc 1990); Malone v. State, 798 S.W.2d 149, 150-51 (Mo. banc 1990); Kilgore v. State, 791 S.W.2d 393, 395 (Mo. banc 1990). The rule says “shall verify,” which is no stronger than the mandatory language “verified by affidavit” found in section 535.020, supra.
It may be that failure of the movant to verify his motion actually does not prejudice anyone, yet such failure is not saved by section 511.260(14), RSMo 1986. I do not believe that statute applies to the summary procedure before us and have been unable to find any cases where it has been so applied. I see no reason not to require that all the i’s be dotted, all the t’s crossed — in other words, that the statute creating the remedy for rent and possession be complied with. That was not done here.
HIGGINS, J., concurs.
. The statute has been substantially the same since 1877, L. 1877, p. 284.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776595. Public record. Not legal advice.