Lykes v. Schwarz

• Decision Date: 10 December 1890
• Citation: 91 Ala. 461,8 So. 71
• Parties: LYKES v. SCHWARZ.
• Court: Alabama Supreme Court

8 So. 71

91 Ala. 461

LYKES v. SCHWARZ.

Supreme Court of Alabama

December 10, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Garrett & Underwood, for appellant.

Feagin & Wilkinson, for appellee.

STONE C.J.

The plaintiff in the court below is the appellant in this case and she complains that, by the judgment of the city court her recovery was less than it should have been. In Ullman v. Herzberg, post, 408, (at the present term,) we had occasion to interpret section 3391 of the Code of 1886. Our interpretation of that statute was that, when a tenant who had entered under a contract of lease forcibly or unlawfully retained the possession after the expiration of the agreed term, or refused to surrender the possession on written demand, he thereby rendered himself liable, literally, for double the amount of the annual rent agreed to be paid under the contract of renting. In that case, the renting had been for a year at the agreed rental of $400, and the landlord had a recovery of $800, although the holding over after written demand was only 17 days. We affirmed the judgment, holding that the statute gave the landlord the right to double the amount of the annual rent, ($400,) and not, as was contended to the pro rata of that sum for the time, and only for the time, the landlord was kept out of possession. We were aware that cases might arise in which there had not been an agreed annual renting, which would probably lead to difficulty in the application of the rule declared, but we did not feel at liberty to depart from the plain letter of the statute. The statute declares that this penalty (the double rent) may be "recovered, as now provided by law, in actions of unlawful detainer, or by an action at law for damages." An action of unlawful detainer is purely statutory, and, in the first instance, is triable only before a justice of peace. Code 1886, § 3378. The civil jurisdiction of justices of the peace is limited by the constitution to cases "wherein the amount in controversy does not exceed $100." Article 6, § 26. The annual rent agreed on in this case was $600, and double that sum would be $1,200. This is entirely beyond the jurisdiction of the justice of the peace, and we so held in the case of Ullman v. Herzberg, supra. We must in all cases, if we can, so interpret statutes as to make them conform to constitutional requirements. So interpreting section 3391 of the Code, we hold that the right to recover double the amount of the annual rent in the proceeding before the justice of the peace must be restricted to those cases in which the sum demanded and demandable does not exceed $100. If the double rent claimed exceeds that sum, it must, if claimed in full, be sued for in an action at law for damages, and in a court having jurisdiction of the amount in controversy. In this case, on the trial before the justice of the peace, the plaintiff, Lykes, had a verdict and judgment for the recovery of the premises sued for, and also for the sum of $33.33, money judgment, and costs. This money judgment has no foundation to rest on, finds no warrant in the law, unless it be for the penalty or damages for holding over after the expiration of the lease. From this judgment, there was an appeal to the city court, the appellant (defendant before the justice) executing two bonds with sureties; one a common appeal-bond in the penalty of $75, under section 3399 of the Code. The other was a Supersedeas bond, undersection 3401 of the Code, in a penalty of $1,200. Its condition was and is "to pay the plaintiff all such damages as he may sustain by the prosecution of the appeal." The appeal-bond, given under section 3399 of the Code, was intended to secure the payment of such judgment as could be recovered in that action, and covered only such grounds of action as existed at the commencement of the suit before the justice of the peace. We think, also, that sound interpretation of that section, and of section 3400, requires us to hold that, on such appeal, only such judgment can be rendered against the appellant, or his sureties on that bond, as could have been rendered by the justice of the peace. If double the annual rent agreed to be paid exceed the limit of the justice's jurisdiction, then such double rent cannot be recovered on the appeal, but must be sought in "an action at law for damages." Section 3391. To hold otherwise would be to declare not only that the appeal court could hear and determine a question and issue which the...