Dietz v. Barnard

• Decision Date: 25 February 1908
• Citation: 107 S.W. 766
• Parties: DIETZ v. BARNARD.
• Court: Kentucky Court of Appeals

107 S.W. 766

DIETZ v. BARNARD.

Court of Appeals of Kentucky.

February 25, 1908

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"Not to be officially reported."

Action by I. P. Barnard against George H. Dietz. From a judgment for plaintiff, defendant appeals. Affirmed.

W. L Doolan, for appellant.

Eugene R. Attkisson, for appellee.

SETTLE J.

By virtue of a writ issued at appellee's instance, and the inquisition held thereunder before a justice of the peace of Jefferson county, appellant was adjudged guilty of forcible detainer. Later the Jefferson circuit court, to which appellant took a traverse, adjudged that the inquisition was true and awarded appellee restitution of the premises in controversy, to wit, a house and lot in the city of Louisville. Appellant complains of the judgment of the circuit court; hence this appeal.

The record does not contain a bill of the evidence heard in the circuit court; consequently it appears to be only necessary to determine whether the warrant and orders, showing the proceedings in the magistrate's court and circuit court are sufficient to support the judgment appealed from. In our opinion this question must be answered in the affirmative. Although the bill of exceptions does not contain the evidence heard in the circuit court, it is insisted for appellant that the rent contract under which he got possession of the property does appear in the record, and that it by implication, if not in express terms, required appellee to notify appellant of his (appellee's) election to declare the contract forfeited for nonpayment of the monthly rent and to demand of him possession of the property as a condition precedent to the issual of the writ of forcible detainer, and that such notice or demand was not given or made. If the rent contract were susceptible of the construction given it by appellant, owing to the absence of a bill showing the evidence upon which the circuit court acted, it would be the duty of this court to take it for granted that there was evidence of such notice and demand. In other words, the presumption would have to be indulged that the judgment was authorized by the evidence introduced in the circuit court. The contract, however, contains no such provision as appellant attributes to it. It leased to appellant the house and lot therein described for a term of three years at $50 per month, payable at the end of each month, and...