ON MOTION FOR REHEARING. Defendants insist that our opinion runs counter to the rule against the splitting of a cause of action, that the plaintiff not having asked for rents and profits in the unlawful detainer action, but having asked only for restitution of the premises, thus split its cause of action and is concluded by the judgment in that action as to its right to recover rents and profits, and therefore may not recover rents and profits, by way of damages, in this action on the recognizance. Defendants liken the unlawful detainer action to the action in ejectment, and rely on Stump v. Hornback, 109 Mo. 272, 18 S.W. 37, as authority for their insistence that the plaintiff has split his cause of action. We can see nothing in that case that sustains the defendants' view. At common law the plaintiff in ejectment was not permitted to recover rents and profits in that action, but could only recover possession, and was compelled to resort to a separate action for his rents and profits, after the recovery of possession in ejectment. The right conferred by the statute to join causes of action for possession and for rents and profits is merely a privilege, and the plaintiff in ejectment may still, if he so desires, confine the relief sought in such action to the recovery of possession, and resort to a separate action for his rents and profits. [9 R.C.L. 939.] In this connection, we should not lose sight of the fact that the present action is not an action for the double rents and profits recoverable in the unlawful detainer action by way of penalizing the guilty party, but it is an action for damages on a recognizance — a contract — entered into between the parties, after final judgment for restitution in the unlawful detainer action. Plaintiff's right of action springs from this contract. Under this contract, plaintiff is entitled to recover whatever damages resulted to it by loss of rents and profits on account of the supersedeas which stayed his judgment for restitution. Since no rents and profits were pleaded or prayed for in the unlawful detainer suit, and the rents and profits were not *Page 861 adjudicated therein, plaintiff ought not be precluded from recovering, by way of damages, in the present action, on the recognizance given to stay the judgment, the rents and profits subsequently accruing, and lost to plaintiff on account of the stay of the judgment.
The contention that plaintiff, because it did not seek to recover in the unlawful detainer action the double rents and profits it was entitled to under the statute, is therefore precluded by the judgment in that action from recovering in this action on the recognizance, the reasonable value of the rents and profits subsequently accruing, and lost to plaintiff by virtue of the defendants' successful resistance of restitution under the judgment, for a period of thirteen months, made possible only by the giving of the recognizance, does not appeal to a right sense of justice.
Defendants further contend that the opinion is in conflict with Bauer v. Cabanne, 105 Mo. 110, 16 S.W. 521. That case was an action on a recognizance given on appeal by defendant from the judgment of the circuit court, dismissing his appeal from the judgment of a justice of the peace, in an unlawful detainer action. That case is clearly distinguishable from the present case, in that the circuit court judgment appealed from, and to stay which the recognizance sued on was given, not only did not adjudge any rents and profits, but neither did it adjudge restitution of the premises.
The Commissioner recommends that the motion for rehearing be overruled.