Chandler v. Kent

Decision Date01 January 1863
Citation8 Minn. 479
PartiesOLIVER P. CHANDLER vs. JOHN KENT.
CourtMinnesota Supreme Court

Horn & Galusha, for plaintiff in error.

D. Cooper, for defendant in error.

FLANDRAU, J.

Action under section 12 of the forcible entry and detainer act (Comp. Stat. 651), to recover possession of land for failure on part of tenant to perform stipulations of lease. Complaint alleges demand of possession previous to the commencement of the action, in the following words: "That the said plaintiff, * * * on the eighteenth day of June, did demand of the defendant in writing, the immediate possession of said premises, That more than three days have elapsed since said demand, and the said defendant refuses and omits to remove therefrom or surrender the same to the plaintiff," etc. The answer does not deny this allegation. On the trial, the counsel for the plaintiff insisted that the allegation of demand was admitted, and needed no proof, but the court thought otherwise, and held him to his proof. He then proposed to show by parol the contents of the notice, which was ruled out by the court, and on the plaintiff failing to produce the original, or account for its absence, the action was dismissed. The error complained of is, that no proof was necessary and none should have been required, the fact having been admitted by the answer.

The counsel for the defendant has made a very ingenious argument to show that the allegation in the complaint is not a compliance with the statute, and therefore not the subject of admission. And he also claims, and so the court held, we are to suppose, that the fact of notice having been served upon the tenant is jurisdictional, and must be established by proof under all circumstances, whether admitted in the pleadings or not. The statute requires that the plaintiff "shall make demand in writing of such tenant or person holding over, that he or she shall deliver possession of the premises held as aforesaid." The allegation in the complaint is that the plaintiff "did demand of the defendant, in writing, the immediate possession of said premises." It would be hard to make a respectable argument to prove that this allegation was not a full and almost literal compliance with the statute, and we do not believe it would have been attempted had not the learned counsel, by a mistake which might easily occur where there are two suits between the same parties about the same matter, got hold of the wrong complaint, the allegation in which, of a demand, is essentially different from the one in the case at bar. The premises of the counsel's argument on this point being drawn from another case, his course of reasoning and his conclusions can have very little influence upon this; we will, therefore, not pursue them farther.

Both parties seem to have taken it for granted, as well as the court, that the contents of this notice could not be proved by parol, unless the original notice was accounted for. The proof of written notices is an exceptional branch of evidence, upon which a great many conflicting decisions have been made in England and this country, which will be found collected in 2 Cow. & Hill's notes to Phil. Ev. 431 to 435, note 239. As no point is made upon this by the counsel for the plaintiff in error, and as we rather incline to the view that a notice of the character of this one, needs the best evidence to prove it, we will not look into the point.

Was it, then, necessary to prove the notice when it was admitted by the pleadings. It cannot be under any other theory than that this notice is necessary to confer upon the court jurisdiction of the subject-matter, and upon this ground the counsel places it. In the first place the court of a justice is one of limited jurisdiction. In the next place this statute affords a very summary remedy to obtain possession of land, and part of it authorizes the imposition of fines, where force has been used either in obtaining the possession of lands, or in detaining such possession, when lawfully and peaceably obtained. From the...

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1 cases
  • State ex rel. Larson v. Probate Court of Hennepin County
    • United States
    • Minnesota Supreme Court
    • November 18, 1938
    ... ... "Parties cannot confer ... jurisdiction by consent upon a court of any subject-matter, ... which is denied to it by law; * * *" Chandler v. Kent, 8 ... Minn. 479, 483 (536); In re Estate of Borlaug, 201 ... Minn. 407, 411, 412, 276 N.W. 732; In re Estate of ... Peterson, 202 ... ...

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