Dunbar v. Hansen

• Decision Date: 05 November 1926
• Docket Number: 4400
• Citation: 68 Utah 398,250 P. 982
• Court: Utah Supreme Court
• Parties: DUNBAR et al. v. HANSEN et al

250 P. 982

68 Utah 398

DUNBAR et al. v. HANSEN et al

No. 4400

Supreme Court of Utah

November 5, 1926

Appeal from District Court, Third District, Salt Lake County; Wm. S Marks, Judge.

Action by Elizabeth H. Dunbar and another against E. M. Hansen and another, in which defendants filed a counterclaim. From a judgment against the named plaintiff, she appeals.

REVERSED and remanded, with directions.

Young Boyle & Moyle and James M. Christensen, all of Salt Lake City, for appellant.

E. M Hansen, pro se.

GIDEON, C. J. THURMAN, CHERRY, and STRAUP, JJ., concur. FRICK, J., concurs in the result.

OPINION

GIDEON, C. J.

This case was originally instituted in the city court of Salt Lake City. The complaint stated an action in unlawful detainer and sought to recover a judgment for the restitution of the premises described therein and for the amount of rent due. Elizabeth H. Dunbar and Ashton-Jenkins Company, a corporation, are plaintiffs, and E. M. Hansen and A. E. Chisholm are defendants. It is alleged in the complaint that Mrs. Dunbar is the owner of the property and that the coplaintiff, Ashton-Jenkins Company, was her agent for the soliciting of a lease for the premises.

Defendants filed an answer and counterclaim. Occupancy of the premises was admitted. Service of notice to pay rent due or vacate the premises was also admitted. Other allegations were denied. In a further defense by way of counterclaim, it is alleged that the defendants entered into a verbal agreement with Ashton-Jenkins Company, whereby the said company agreed with the defendants that, if the defendants would repair and remodel the building situate on the property, it would execute and deliver to the defendants a written lease on said premises for a term of five years, from and after June 1, 1924, for a monthly rental of $ 120, payable monthly, in advance; that the plaintiffs Ashton-Jenkins Company and the owner of the property, Mrs. Dunbar, refused to enter into a lease contract with the defendants, as agreed by Ashton-Jenkins Company. It is also alleged in the counterclaim that the defendants made certain repairs on the building and expended several hundred dollars in buying materials and for labor. The prayer of the counterclaim is that the plaintiffs take nothing by reason of their complaint, except the sum of $ 360 rent, admitted to be due; that the plaintiffs be required by order of the court to execute and deliver a lease for the term of five years to the defendants, or, in the event that the plaintiffs refuse to execute the lease for such term, at a rental of $ 120 per month, then that judgment be entered against plaintiffs and each of them in favor of defendants for the sum of $ 785.97. No tender of the rent conceded to be due was made by or on behalf of the defendants.

The case was tried in the city court and judgment entered in favor of plaintiffs for a restitution of the premises and for the amount of rent found due. So far as the record discloses, no order was made in that court respecting the counterclaim. An appeal was taken by defendants to the district court. Defendants did not file a supersedeas bond, but did file a cost bond. Plaintiffs obtained a writ of restitution and placed the same in the hands of the sheriff for execution. Thereupon it appears that defendant Chisholm paid plaintiff Dunbar the amount of the judgment and costs found against both defendants by the judgment in the city court. Plaintiff Dunbar, at that date, gave to Chisholm a written lease on the premises for a period of three years. That was the status of affairs at the time the case was called for hearing in the district court. At the close of the trial in the district court, an order was made dismissing the counterclaim against plaintiff Ashton-Jenkins Company. The court made findings of fact and entered its judgment against the plaintiff Elizabeth H. Dunbar in the alternative requiring her to execute a lease to the defendants, or, in failure so to do that judgment be entered against her for the sum of $ 785.97. From that judgment Mrs. Dunbar appeals.

Notice of appeal was served upon defendant Chisholm, but he has not appeared in this court, either personally or by counsel, and no argument has been made in his behalf. Respondent Hansen appeared in his own behalf and has submitted a short written argument in support of the judgment of the district court.

Judgment was entered in the district court on November 4, 1925. Notice of judgment was served upon appellants on November 30, 1925. Notice of appeal was given December 4, 1925. The jurisdiction of this court to consider this appeal is questioned by reason of the fact that the appeal was not taken within ten days after the rendition of judgment.

Chapter 64, §§ 7313 to 7327, inclusive, Comp. Laws Utah 1917, defines forcible entry and unlawful detainer and provides the procedure in forcible entry and unlawful detainer actions. In section 7326 it is provided that either party may appeal within ten days from the rendition of judgment. The appeal in this case was not taken within ten days after judgment was rendered. The question suggested is: Is the appeal in this action controlled by said section 7326? The judgment in the city court was for the restitution of the property and for the rent due. That judgment was satisfied by one of the defendants. At the opening of the trial in the district court, counsel for plaintiffs stated that they did not desire to introduce any proof in support of their complaint, that the judgment of the city court was satisfied and the property restored, and a lease had been given to one of the defendants. Counsel likewise objected to the introduction of any testimony on the part of the defense in support of the counterclaim. It is evident from the court's findings that it did not treat the case then on trial before it as an action for the restitution of property. Among the court's findings is the following:

"This cause came on regularly to be heard * * * and, the plaintiffs having stated in open court that they did not desire to offer any testimony in support of their complaint, the court proceeded to hear the cause upon the counterclaim of the defendants."

At the close of the testimony, plaintiffs' counsel moved for a dismissal of defendants' counterclaim. In the court's judgment is found this language:

"And counsel for plaintiffs having stated in open court that they did not desire to offer testimony upon their complaint, the court proceeded to the trial upon the counterclaim of the defendants."

It is thus apparent that the district court was not trying the right of possession of plaintiffs to the premises, but was trying and determining the right of defendants to recover an affirmative judgment against plaintiffs, based upon the allegations of the counterclaim. The judgment was in the alternative, that plaintiffs execute a lease to defendants, or, upon failure, that judgment be entered in a specific amount against the appellant Dunbar, in favor of the defendants. Section 7324 of chapter 64, supra, provides the nature or kind of judgment that a court is authorized to enter in forcible entry or unlawful detainer actions. Section 7326, supra, in limiting an appeal to ten days after judgment, relates to a judgment of the nature authorized by section 7324, and does not control or relate to a judgment of the nature or kind entered by the court in this proceeding. We are of opinion that the right of appeal in this case is controlled by the other provisions of the statute giving either party six months in which to appeal, and not by the provisions of section 7326, supra.

As pointed out, the original action instituted by appellants Dunbar and Ashton-Jenkins Company, as plaintiffs, was one in unlawful detainer. We are therefore met at the threshold of the consideration of the merits of this appeal with the query, Could the defendants, in a statutory unlawful detainer proceeding, aver facts as a defense that in other cases would constitute a counterclaim or offset against the plaintiffs; or could the court, under the statute, entertain or permit a defense in the nature of a counterclaim or set-off against a complaint in unlawful detainer?

Section 6576, Comp. Laws Utah 1917, defining a counterclaim, is identical with section 438 of the California Code of Civil Procedure. In fact, this section of our Code was taken from the California Code. The California courts have had occasion to consider the identical question presented here in several cases. In the course of the opinion in Arnold v. Krigbaum, 169 Cal. 143, 146 P. 423, Ann. Cas. 1916 D, 370, the court says:

"It appears to be thoroughly established, both in this state and in other jurisdictions having substantially similar statutes to our unlawful detainer statutes, that neither a counterclaim nor cross-complaint of any...