Geary v. Parker

• Decision Date: 11 June 1898
• Citation: 47 S.W. 238
• Parties: GEARY v. PARKER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

47 S.W. 238

GEARY v. PARKER et al.¹

Supreme Court of Arkansas.

June 11, 1898.

Appeal from circuit court, Garland county; Alexander M. Duffie, Judge.

Unlawful detainer by Arthur Parker and others against John Geary. From a judgment for plaintiffs, defendant appeals. Reversed.

Greaves & Martin, Geo. L. Basham, and Rose, Hemingway & Rose, for appellant. Wood & Henderson, for appellees.

WILLIAMS, Special Judge.

On the 9th of November, 1889, the appellee Parker leased lot No. 3 of block 58 of the city of Hot Springs to the appellant, John Geary, for a term of 15 years, at an annual rental of $70, payable quarterly in advance, the appellant having the option at any time within the 15 years of purchasing it for $1,100. An action of unlawful detainer was brought by the appellee, the complaint alleging that the appellant entered into possession, and then so continued, but that he failed and refused to pay the rent which became due on the 9th of November, 1890, to wit, $17.50; that he refused to recognize appellee's rights, and abandoned the contract; that on December 16, 1890, appellee made written demand on appellant for the possession of the lot, which he refused; that, by reason of the failure just named, the appellee was entitled to immediate possession. The appellant interposed a general demurrer, which the court sustained; but, on appeal to this court by the present appellee, this ruling of the lower court was reversed, on February 18, 1892. See 57 Ark. 301, 21 S. W. 472. The appellant, on March 25, 1891, before the case was remanded, filed an answer and motion to transfer to the equity docket, which motion was overruled on April 4, 1894. On May 12, 1893, the appellant filed an answer, denying that he failed and refused to pay the rent due on the 9th of November, 1890, or at any other time, or that he refused to recognize appellee's rights, or had abandoned the contract. On the next day, he filed what he termed an "Amendment to the Substituted Answer to Plaintiff's Complaint." In this he denies that he was indebted to the appellee in the sum of $17.50, or any other sum, for rent, and that demand was made upon him for rent upon said date. He denied that he failed to pay rent, and that the appellee was entitled to possession at the date of the notice, or at the time of bringing suit. He also alleged that the appellee failed to put him in possession of all the property, having withheld a house occupied by appellee's wife and mother; that the house had a rental value of $4 per month; and that a greater sum was due him on account thereof than $17.50. The appellee filed a motion to strike this amended answer, on the ground that it was filed after the trial began, and during cross-examination of the appellee; also, that the alleged eviction of a part of the premises "should not at this stage of the trial be presented as an issue in the case."

It is contended by the appellee that no exceptions were reserved specifically to the instructions given by the court. In the bill of exceptions they were reserved as follows: "To which ruling of the court in giving each and every one of said instructions so numbered 1st, 2d, 4th, and 5th the defendant at the time excepted." In the motion for the new trial as follows: "Because the court erred in giving to the jury, over the objection of the defendant, instructions numbered 1, 2, 4, and 5 as asked for the plaintiff." The cases in our Reports cited by counsel in support of their contention are those in which the exceptions were reserved at the time in the bill of exceptions to the instructions en masse, followed in the motion for new trial in the same manner, or, having been properly reserved in the bill of exceptions, were abandoned by failure to make them a ground of the motion for a new trial. There seem to be none to the effect that, where specifically reserved in the bill of exceptions, a failure to as specifically note them, in the motion for a new trial will be an abandonment, if they are referred to in a general manner in the motion. The real reason for requiring specific exception is that the attention of the trial court may be called to the particular error complained of. The exception here is to "each and every one." The word "every," as defined in Anderson's Dictionary of the Law, is: "Each one of all. Includes all the separate individuals which constitute the whole, regarded one by one." The law does not require that an objection to an instruction shall be more specific than this. An exception to an instruction need not state the point of exception. McCreery v. Everding, 44 Cal. 246; Shea v. Railroad Co., Id. 415. Specification of the instruction so as to designate it is sufficient. Rogers v. Mahoney, 62 Cal. 611. The attention of the trial judge having been directed to each instruction separately by the original exceptions, the motion for the new trial should be taken in connection therewith. The reason of the rule will thus be followed. The instructions stand in separate paragraphs, and each enunciates some rule or rules of law. In the language of the court in Davenport Gas Light & Coke Co. v. City of Davenport, 13 Iowa, 237: "If any one was improperly refused, therefore, there was a ruling upon the law or proposition as there stated; and as that particular proposition was called to the attention of the court, and insisted upon by the party asking it as the law governing the case, there is no chance for surprise, nor any fair ground for claiming that the mind of the judge was not called to what it was that counsel would not have him hold." In the case of Atkins v. Swope, 38 Ark. 528, 539, looking at the language of the court, it appears that the objection first made was general, and the motion was no better. The court say: "The first ground of the motion for the new trial is that the court erred in giving the 1st, 2d, &c., instructions asked by defendants. The objection made to giving these instructions was general, embracing all of them in gross." The objections were sufficiently specific.

Some of the instructions given to which exceptions were reserved told the jury that, if they found that any sum of money was due at the time of bringing the suit, they must find for the appellant. In determining the soundness or unsoundness of such instructions, we are called upon to consider and construe section 3348 of Mansfield's Digest, the statute in existence when the suit was brought. It is as follows: "When any person * * * shall lawfully and peaceably obtain possession (of lands and tenements), but * * * shall fail or refuse to pay rent therefor when due, and after demand made in writing for the delivery of possession thereof, * * * such person shall be guilty of unlawful detainer." The appellee contends that under this statute, if the appellant failed to pay upon the day rent fell due, and he was notified in writing to vacate, the right of enforcement of the suit for unlawful detainer became inviolate, and that no tender made after notice and prior to suit could avail to defeat the right. There was no condition of forfeiture in the lease for nonpayment. The decision of this court when the case was here before is cited as upholding this construction. The complaint there was good upon its face, but the answer and evidence present defenses which did not then appear. It was shown by the evidence that the parties to the contract acted harmoniously for one year. When the appellant took possession, he assumed to pay an unpaid balance of a mortgage on the land, and also the taxes, which should be deducted from his rents. These he paid, but just what amount on the mortgage is not clearly shown. He paid $10 taxes on April 10, 1890. The appellant produced receipts as follows: $49.90, November 18, 1889; $16, May 19, 1890; 50 cents, June 12, 1890; 50 cents, July 4, 1890; 50 cents, August 4, 1890; $2.60, October 2, 1890. These aggregate $70, the sum due for rent one year. The appellant claimed that the sum paid for taxes did not enter into any of the receipts, and that he was due an additional credit on this account. The appellee says he did not know who paid his taxes for that year, but knows that the appellant had credit for it in his receipts. The appellee went to the house of appellant on November 10, 1890, and demanded rent for one year in advance, but subsequently modified his demands to rent for one quarter in advance. The appellant told him that he would meet him uptown in a few days, and settle; but, failing to do so, he called again, and received substantially the same answer; and he called the third time, and asked for a copy of the lease, as he desired some lawyer to look at it; and the appellant promised to come uptown in a few days, and go to his lawyer, and have the lease explained. This is the version of the appellee. The appellant says that, when the 9th of November arrived, he had not...