Lowman v. West

• Decision Date: 05 March 1894
• Citation: 36 P. 258,8 Wash. 355
• Parties: LOWMAN ET UX. v. WEST ET AL. [1]
• Court: Washington Supreme Court

36 P. 258

8 Wash. 355

LOWMAN ET UX. v. WEST ET AL. ^[1]

Supreme Court of Washington

March 5, 1894

Appeal from superior court, King county; J. W. Langley, Judge.

Action of unlawful detainer brought by J. D. Lowman and Mary R Lowman, his wife, against D. W. West, Lloyd Jones, Frank Marino, George Dollma, Matthew Totten, Quen Hing, a Chinaman Chris Johnson and John Doe Oelkers, copartners as Johnson &amp Oelkers, and M. Costopech. Plaintiffs obtained judgment. Defendants appeal. Reversed.

Dunbar C.J., and Hoyt, J., dissenting.

P. P. Carroll, for appellants.

Carr & Preston and W. R. Bell, for respondents.

STILES J.

The material portions of the complaint in this case (an action for unlawful detainer), so far as the merits were concerned, were as follows: "(1) That plaintiffs were husband and wife. (2) That at all times herein mentioned the defendants D. W. West and Lloyd Jones were, and are now, in the possession of [description] as the tenants of the plaintiff J. D. Lowman; that said tenancy of said defendants was and is a tenancy from month to month, with monthly rental reserved, payable monthly in advance on the first day of each and every month. (3) That the monthly rental reserved for the occupation of said premises by the said defendants, and by them promised to be paid therefor, was and is the sum of fifty dollars per month for each and every month of said tenancy, and that by the terms of said tenancy the same was and is payable monthly in advance on the first day of each and every month, in advance for the then ensuing month of said tenancy. (4) That on, to wit, the 1st day of November, 1892, the defendants D. W. West and Lloyd Jones were indebted to the said plaintiff J. D. Lowman for the rent of said premises for the months of [ten months in all], amounting, in all, to the sum of $500; that subsequent to the said 1st day of November, 1892, and on, to wit, the 18th day of November, 1892, no part of said rent having then been paid, and the whole thereof, to wit, the said sum of $500.00, being then due and payable, the said plaintiffs made a written notice requiring said defendants, in the alternative, to pay the said rent, or to surrender the possession of the said premises, within three days after the date of the service of said notice upon them. (5) [Shows service of the notice on West and Jones.] (6) That more than three days have elapsed since the service of said notice upon said defendants, and the said defendants have failed and refused, and do now fail and refuse, to pay the said rent, or any portion thereof, and have failed and refused, and do now refuse, to surrender the said premises to said plaintiff. (7) That no part of said rent has been paid, and the whole thereof is now due and payable; and the said defendants now unlawfully detain the said premises from the possession of the plaintiff J. D. Lowman, although possession thereof has been duly demanded. (8) That the defendants [other defendants named] claim to have some right of possession to portions of said premises under the said West and Jones; that the nature and extent of the rights of said defendants, if any they have, are to the plaintiffs unknown. (9) [Shows service of the notice on the other defendants.]" All of the defendants appeared and jointly demurred on eight grounds, viz.: (1) Defect of parties plaintiff; (2) defect of parties defendant; (3) another suit pending between the same parties for the same cause of action; (4) two causes of action improperly joined; (5, 6, 7) paragraphs 4, 5, and 6 state no cause of action; (8) the general demurrer.

The first four grounds were not well taken,-the first, second, and fourth because the defects and the misjoinder were not pointed out, and the third because the pendency of another suit is a defense to be taken by plea, answer, or proof under the general issue, unless it appears on the face of the complaint. The fifth, sixth, and seventh grounds were frivolous. A demurrer does not lie to a single paragraph of a complaint unless it purports to present a complete cause of action, which these did not.

The general demurrer, however, deserves more attention. An action under the unlawful detainer act of 1891, although it is within the jurisdiction of the superior courts, is none the less a special and summary proceeding, in which the power of the court to render an affirmative judgment depends upon the existence of certain statutory facts.

The plaintiff "must set forth the facts on which he seeks to recover" is the language of this act, as it has been construed to be the express or implied requirement of all the acts governing this kind of proceeding. Mere conclusions of law have, perhaps, a less appropriate place in a complaint of this kind than anywhere in the realm of civil pleading, for it is proposed to summarily take the possession of real property from one man, and give it to another, without opportunity to plead anything but the general issue, or some affirmative defense like payment, eviction by the holder of paramount title, or some matter occurring since the tenancy commenced sufficient to terminate it. Upon the merits of this case the complaint before us seems to abound in conclusions of law, rather than to contain statements of fact upon which the court could see whether sufficient facts existed. It is alleged, in the first place, that at certain times West and Jones were in possession of two certain lots as tenants of Lowman from month to month at a rental of $50,...