Kohner Properties, Inc. v. JohnsonAnnotate this Case
The Supreme Court affirmed the judgment of the circuit court entered in favor of Kohner Properties, Inc. in this rent-and-possession action, holding that circuit courts may exercise discretion on a case-by-case basis to determine whether an in custodia legis procedure is appropriate in a particular case.
On appeal, Johnson argued that the circuit court erred in barring her from asserting the implied warranty of habitability as an affirmative defense and counterclaim because she remained in possession of the premises without depositing her unpaid rent to the circuit court in custodia legis. In making its ruling, the circuit court relied on the in custodia legis procedure in King v. Moorehead, 495 S.W.2d 65 (Mo. App. 1973). The Supreme Court affirmed, holding that although the in custodia legis procedure in King was dicta, that was immaterial because such dicta has been “dutifully followed by our circuit courts for almost five decades” and therefore constituted the status quo in Missouri. The Court went on to hold that, given the absence of contrary authority from the Court or contrary legislation from the General Assembly, the circuit court could not be faulted for relying on King when it barred Johnson’s affirmative defense and counterclaim.