Drinkard v. Heptinstall
| Decision Date | 15 March 1904 |
| Citation | 47 S.E. 72,55 W.Va. 320 |
| Parties | DRINKARD v. HEPTINSTALL. |
| Court | West Virginia Supreme Court |
Submitted March 1, 1904
Syllabus by the Court.
1. A justice's summons in a suit of unlawful detainer defective for an insufficient description of the property may be amended on appeal to the circuit court, when substantial justice will be promoted by such amendment.
2. On appeal from a justice the case may be tried on such pleadings as will secure substantial justice between the parties whether such pleadings are made up in court or before the justice. The circuit court may amend the pleadings to promote the ends of justice and secure a fair trial.
3. A lease which provides that the tenant may have the refusal of the premises from month to month so long as the tenant may desire to occupy the premises is a grant of preference over other proposed tenants if the landlord continues to rent the property. Such lease terminates at the end of each month, and no notíce to quit is necessary. A demand for the possession of the property is sufficient to prevent a renewal of the tenancy and give the landlord the right to sue for possession at the end of the current month.
Error to Circuit Court, Mercer County; J. M. Sanders, Judge.
Action by Hattie N. Drinkard against J. P. Heptinstall. Judgment for plaintiff, and defendant brings error. Affirmed.
W Walter McClaugherty, for plaintiff in error.
H. A. Ritz and Anderson & Easley, for defendant in error.
J. P. Heptinstall complains, on writ of error, of a judgment of the circuit court of Mercer county, rendered against him on the 29th day of May, 1902, in favor of Hattie N. Drinkard, in an action of unlawful detainer, entitling her to possession of certain property held by the defendant as her tenant.
The first error assigned is that the circuit court permitted plaintiff to amend her summons as to the description of the property after motion to quash. The court did this by virtue of section 212, c. 50, Code 1899, which reads as follows, to wit: And section 169, c. 50, says: "The appeal may be tried upon the pleadings made up in the justice's court, or the pleadings may be amended before or during the trial of the appeal when substantial justice will be promoted by the amendment." It is very plain that the court committed no error in allowing such amendment. Thorn v. Thorn. 47 W.Va. 4, 34 S.E. 759; Simpkins v. White, 43 W.Va. 125, 27 S.E. 361.
The second error assigned is because the plaintiff failed to refile her affidavit filed before the justice denying that title to real estate would come in controversy. This was wholly unnecessary, as such counter affidavit was already in the case, and the issue on the same was fully made up before the justice; and because the defendant chooses to have an order refiling his affidavit in court does not destroy the issue already joined thereon before the justice. It plainly appears that the title to the property in controversy was not in question, and the defendant did not even insist on the circuit court passing on this question prior to trial, but his refiling the affidavit was regarded as the filing of a plea to which the plaintiff properly entered a general replication.
All the other assignments of error relate to the merits of the case and depend entirely on the construction of defendant's lease. Plaintiff purchased the property in controversy of J. H. Nash, and held a deed for it bearing date 14th August, 1901. On the 15th August, 1901, she served on the defendant the following notice:
He refused to give up the property, and wrote plaintiff a letter as follows:
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