Bush v. Baker

Decision Date22 October 1915
Docket Number3560.
PartiesBUSH v. BAKER.
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Mary Bush, executrix, against Charles A. Baker. Verdict for plaintiff, and, from an order granting defendant's motion for new trial, she appeals. Affirmed.

Peter Breen, Nolan & Donovan, and N. A. Rotering, all of Butte, for appellant.

James H. Baldwin, of Butte, for respondent.


Appeal from an order granting a motion for a new trial. The grounds assigned in the notice of intention were: Insufficiency of the evidence to justify the verdict, that the verdict is against law, and errors of law occurring at the trial. The first of these grounds is not before us, because the motion was heard on the minutes of the court by a judge who did not preside at the trial, and, as conceded on oral argument by both parties, it was not and could not have been granted for insufficiency of the evidence. The second ground is plainly without merit. The respondent does not indicate nor does the record disclose, any contrariety between the verdict and the instructions. A verdict is "against law," in the sense of section 6794 of the Revised Codes only when it is contrary to the law of the case as given to the jury in the instructions. Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 P. 673; Previsich v. Butte Electric Ry. Co., 47 Mont. 170, 131 P. 25; Melzner v. Raven Copper Co., 47 Mont. 351, 132 P. 552. It remains, then, to ascertain whether the order appealed from can be justified because of errors of law.

The cause originated in the justice court upon a complaint which alleged the letting of a certain dwelling to the defendant his failure to pay the rent stipulated in the lease, the amount of such rent due, service on July 5, 1911, of a written demand that he pay the rent due or quit the premises his refusal to do either, and that he "unlawfully holds and continues in the possession of the said premises * * * without permission of the plaintiff." The prayer was "for the sum of $290, rent due, for the restitution of the said premises, and for costs of suit." Issue was joined and the cause tried before the justice of the peace, who, on August 7, 1911, found all the allegations of the complaint to be true, "and that the defendant unlawfully holds possession of the premises described in the complaint after default in the payment of rent," and adjudged "that the plaintiff do have and recover * * * the possession" of the premises "and the sum of $290 as rent."

The defendant appealed to the district court, and in that court an amended complaint was filed which differs from the original complaint in its failure to specifically state that the defendant was holding, or ever had held, possession without the plaintiff's permission; but it alleges that:

"The defendant refused to deliver up the possession of the said premises until on or about the ______ day of April, 1912, when he was compelled so to do by process of court duly issued herein."

The defendant answered: (1) Denying any default in the payment of rent, service of notice to pay or quit or voluntary surrender of the premises, and alleging a forcible eviction therefrom; (2) asserting a counterclaim for damages based upon averments that it was the duty of the plaintiff to keep the premises habitable by repairing all subsequent dilapidations not of defendant's causing, which rendered them untenantable, that after he entered into possession such dilapidations occurred in the months of March, April, May, and June, 1911, which the plaintiff refused on notice to repair, and which the defendant was obliged to repair, to his total cost--not exceeding the monthly rental in any one month--in the sum of $290; (3) asserting a counterclaim for damages based upon averments that the place was leased to him to be used in part as a rooming house, and that, on account of the plaintiff's failure to correct the dilapidations above referred to, defendant lost the use of the rooms and the rents and profits which would have accrued to him from the same; (4) asserting a counterclaim for damages in the sum of $150, based upon injury to his furniture due to water and plaster falling, in consequence of plaintiff's failure to repair the dilapidations above referred to. The plaintiff by reply put in issue all the affirmative allegations of the answer.

Upon the trial the presiding judge ruled that, possession of the premises having been restored to the plaintiff, the issue of unlawful detainer was no longer in the case and restricted the plaintiff's evidence to the issue of unpaid rent. He also refused to admit any testimony in support of the defendant's last two counterclaims. At the close of all the evidence, the defendant moved for a directed verdict, upon the ground that the amended complaint and the case made under it constituted a material and fatal departure from the cause of action as originally brought. This was overruled, and the court, by instructions given and refused, authorized the jury to find a verdict for rent only, and denied the right of defendant to have an offset for repairs in excess of $72.50, the amount of one month's rent. The jury returned a plaintiff's verdict for $217.50 on which judgment was entered.

The contentions are that the motion for new trial was properly granted because the trial court erroneously permitted the case to go to the jury as an action for rent only, because the rulings rejecting evidence in support of defendant's last two counterclaims were incorrect, and because the trial court was wrong in holding that, under the circumstances presented, the defendant could not recoup from rentals more than $72.50,--the amount of one month's rent,--for the repairs made by him.

1. In support of the first contention, it is suggested that the action as brought and determined in the justice's court was for an unlawful detainer under subdivision 2 of section 7271 of the Revised Codes; as such it came to the district court, and the jurisdiction of that court was limited to the retrial of the cause as presented to the justice's court but to state a cause of action under subdivision 2 of section...

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