Frahn v. Greyling Realization Corporation

Citation195 So. 758,239 Ala. 580
Decision Date11 April 1940
Docket Number8 Div. 38.
PartiesFRAHN v. GREYLING REALIZATION CORPORATION.
CourtSupreme Court of Alabama

Rehearing Denied May 16, 1940.

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Action of unlawful detainer by Greyling Realization Corporation against Harry J. Frahn. From a judgment for plaintiff defendant appeals.

Affirmed.

Where tenant refused to surrender possession of premises on termination of lease, plea in short by consent that party in whose name unlawful detainer proceeding was instituted was not real party in interest was properly stricken, since tenant is estopped to deny title of his landlord while holding under lease or after the expiration unless he surrenders possession to the landlord.

The rental contract, upon which the action is based introduced in evidence over defendant's exception, is as follows:

"State of Alabama
"Colbert County
"In the Circuit Court
"Greyling Realization Corporation, Plaintiff, vs. Harry J. Frahn, Defendant
"This is a suit for the possession of the following lands: Lots 20, 21, and 22 in Block 3, according to the map and survey of Sheffield Center Addition No. Three, according to the map thereof made by P. S. Milner, C.E., and filed for record in the office of the Probate Judge of Colbert County, Alabama. The parties have agreed on a settlement and a non-suit by the plaintiff of this action on the following terms:
"1. Defendant agrees to pay $105.00 in settlement of back rent and in discharge of accrued court cost, and plaintiff agrees to non-suit its action and pay accrued court costs.
"2. Plaintiff rents to defendant and defendant rents from plaintiff for the consideration of the mutual agreements of the parties the lot of land hereinbefore described and the rental price is $15.00 per month. The rental period begins October 1, 1938, and rental payments are due on the 1st day of each month.
"This contract is subject to termination on the part of either party upon thirty days notice in writing.
"Done at Tuscumbia, Alabama, this October 5, 1938.
"Greyling Realization Corporation, Ptff.
"By E. E. Beck, as its agent
"Harry J. Frahn,

Deft.

"Harry J. Frahn,

"By T. M. Thomas, as his attorney of record.

"The $105.00 mentioned above has been paid by defendant to me this October 5, 1938.

"Clopper Almon

"As Plaintiff's atty. of record."

Plaintiff's witness Beck testified that he was plaintiff's rental agent for the property, and had collected rent from defendant; that defendant had been in the occupancy of said property; that at the time the above contract was entered into there had been pending in the same court another law suit between defendant and plaintiff to obtain possession of the same property; that defendant, prior to said suit, had been in possession of the property, and in closing up that case, the foregoing contract was signed; that after the signing of said contract and payment of back rent, defendant continued in possession of the premises and had been ever since that time; that witness served upon defendant the following notice:

"January 31, 1939
"Mr. Harry J. Frahn:
"This notifies you that the rental agreement between you and Greyling Realization Corporation is hereby terminated. And you will in due course yield possession of such premises to Greyling Realization Corporation.
"The premises referred to are the house and lot occupied by you under such rental agreement the same being particularly described as follows:
"Lots 20, 21 and 22 in Block No. 3, according to the map and survey of Sheffield Center Addition No. 3, according to the map thereof made by P. S. Milner, C.E., and filed for record in the office of the Judge of Probate of Colbert County, Alabama.
"Yours very truly,
"Greyling Realization Corporation
"January 31, 1939
"On this day I delivered to Harry J. Frahn the original document, the carbon of which appears above.
"E. E. Beck."

Defendant objected to the introduction of the notice upon the ground that it is not a thirty-day notice in writing as provided for in the lease.

The witness further testified that defendant remained on the property after the foregoing notice, did not surrender possession to plaintiff, and that thereafter the following notice (objected to by defendant upon the same grounds) was served upon defendant:

"March 4, 1939
"Mr. Harry J. Frahn:
"On January 31, 1939, you were notified of the termination of your rental agreement with the undersigned, and demand was made for possession.
"This is to demand possession of the house and lot occupied by you under such rental agreement, the same being particularly described as follows:
"Lots 20, 21 and 22 in Block No. 3, according to the map and survey of Sheffield Center Addition No. 3, according to the map thereof made by P. S. Milner, C.E., and filed for record in the office of the Judge of Probate of Colbert County, Alabama.
"Unless you deliver possession within ten days from this date suit will be instituted.
"Yours truly,
"Greyling Realization Corporation
"March 4, 1939
"On this day I delivered to Harry J. Frahn the original document, the carbon of which appears above.
"Floyd Mitchell."

Witness further testified that defendant, after service of the latter notice, did not surrender possession of the property, and was still in possession.

The bill of exceptions recites: "At this point the defendant orally entered a plea in short by consent that the party in whose name this suit is brought is not the real party interested, and the plaintiff moves to strike the plea." The Court sustained the motion to strike the plea, stating: "The defendant can't dispute possession under the law, if he is a tenant, he has got to surrender possession, he can't remain in possession."

Plaintiff offered in evidence the supersedeas bond showing that an appeal was taken from the judgment in the justice of the peace court in favor of the plaintiff for the possession of the property.

It appears that suit was instituted in the Justice Court, and defendant appealed to the circuit court. Complainant was filed by plaintiff in the Circuit Court, and on trial there was verdict and judgment for plaintiff. Defendant appeals.

R. L. Polk, of Sheffield, for appellant.

Smith, Windham, Jackson & Rives, of Birmingham, Clopper Almon, of Sheffield, and Mitchell & Poellnitz, of Florence, for appellee.

THOMAS Justice.

The proceedings were initiated in the justice court under authority of General Acts 1932, Extra Session, p. 164; Code, § 8831. The constitutionality of Section two of said act is challenged as not affording due process of law.

The rules of statutory construction need not be repeated. Jefferson County v. Busby, 226 Ala. 293, 148 So. 411.

When a part of an act is challenged, the whole act relating thereto will be looked to and considered in pari materia and aid its constitutionality, if such is the effect. Mobile County et als. v. State of Alabama ex rel. Cammack, Ala.Sup., 197 So. 6; State v. Inman, Ala.Sup. 195 So. 448.

It is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing. That is, the requirements of the Fourteenth Amendment of the Federal Constitution are that the defendant be given the character of notice and opportunity to be heard which is essential to due process in the instant procedure. That the court which assumes to determine the rights of the parties shall have jurisdiction thereof and of which proceeding the notice...

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  • Vernon v. State
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    • 18 d4 Maio d4 1944
    ... ... 1, 58 S.Ct ... 773, 82 L.Ed. 1129, 42 Am.Jur. 379; Frahn v. Gregling ... Realization Corp., 239 Ala. 580, 195 So. [245 Ala. 636] ... ...
  • Neal v. Neal
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    ...a hearing according to that notice, and a judgment entered in accordance with such notice and hearing." Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added). The rule that a want of due process, so defined, voids a judgment is not redundant with t......
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    • 22 d5 Maio d5 2015
    ...a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’" Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)(emphasis added [in Neal ] ). The rule that a want of due process, so defined, voids a judgment is not redu......
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