McLain v. Nurnberg

• Decision Date: 24 June 1907
• Citation: 16 N.D. 144,112 N.W. 243
• Parties: McLAIN v. NURNBERG.
• Court: North Dakota Supreme Court

16 N.D. 144

112 N.W. 243

McLAIN

v.NURNBERG.

Supreme Court of North Dakota.

May 4, 1907.

Rehearing Denied June 24, 1907.

Syllabus by the Court.

Where a tenant, pending an appeal from a judgment against him in justice's court in an action of forcible detainer for the possession of real estate and for the recovery of unpaid rent, surrenders the possession of the property, the trial may legally continue in the district court to determine the issue on the question of rent.

A justice of the peace acquires jurisdiction to try and determine an action for forcible detainer under section 8406, Rev. Codes 1905, by the giving of a notice to quit although such notice is not filed with the justice when the summons is issued.

An action for the possession of real estate under the forcible detainer statute may be maintained when the tenant fails to pay the rent within three days after it falls due.

An objection to a notice to quit leased premises on the alleged ground that the notice does not allege the ground on which the possession is claimed is waived by going to trial without specifically attacking the notice on that ground.

A notice to quit is not waived by the failure to commence an action for possession until 60 days from the time of giving such notice.

Where the trial court grants leave to amend a complaint and to file the formal amended complaint at a later time, and the trial proceeds on the theory that the complaint has been regularly amended, and no objection is made to the irregularity until the case reaches the Supreme Court on appeal, the irregularity is waived.

The fact that a verdict is given for a sum larger than demanded in the original complaint cannot be first raised on appeal.

The insufficiency of the evidence to sustain the verdict cannot be raised for the first time on appeal, and not then until the particulars are pointed out on new trial proceedings.

Objections to the competency of evidence cannot be raised for the first time on appeal.

A requested instruction is properly refused, unless it is applicable to the facts as proven or to some theory of the evidence given in the case.

An attorney employed to collect rent and to serve certain notices has no power by virtue of such employment alone to make new contracts for his principal.

Appeal from District Court, Stutsman County; C. J. Fisk, Judge.

Action by Eula L. McLain against H. Nurnberg. Judgment for plaintiff, and defendant appeals. Affirmed.S. E. Ellsworth, for appellant. S. L. Glaspell and James A. Murphy, for respondent.

MORGAN, C. J.

This is an action of forcible detainer. The plaintiff recovered judgment in justice court for the possession of the house and lot described in the complaint and for the sum of $37, unpaid rent, and damages. The defendant appealed to the district court, and demanded a new trial in his notice of appeal. Prior to the trial in district court the defendant vacated the premises in suit, and the trial proceeded upon the sole issue whether the defendant was indebted to the plaintiff in any sum for rent or for damages on account of the occupancy of the premises. The assignments of error are numerous, but they may all be disposed of by consideration of a part of them as covering or including them all.

It is contended that there must be a reversal for the reason that the verdict and judgment are silent as to the right of the possession of the defendant of the premises at the commencement of the action. There was no issue on the trial in the district court as to the right to the possession. That issue was eliminated by the surrender of possession by the defendant to plaintiff after the trial in justice court. The defendant's contention that no verdict for rent can be sustained without a finding as to the right of possession at the commencement of the trial cannot be sustained. To litigate the right of possession after possession had been voluntarily given up in a case like this would be litigating an issue already disposed of by the voluntary act of one of the parties. The question whether defendant was entitled to possession when the action was commenced became immaterial. The statute permits a cause of action for unpaid rent to be joined with a cause of action for forcible detainer. The right of possession having been disposed of, the action did not abate so far as the issue as to the nonpayment of rent was concerned. Section 8409, Rev. Codes 1905, authorizes the joinder of a cause of action for rent with one for possession. The action is strictly one for possession based on a wrongful detainer, and a recovery for rent is permitted in connection therewith. The cause of action for rent was rightfully joined at the commencement of the action, and, because the question of possession has been determined by the withdrawal of defendant from the premises, we discover no reason why the action should not continue in order that all the issues properly in the case may be speedily disposed of. No authorities are cited in favor of this contention, and we have failed to find any. Cases holding that the right to recover rents is incidental to the right to recover possession do not control the point here involved.

It is argued that the justice of the peace never acquired jurisdiction of the cause, for the reason that the notice to quit was not filed with him at or before the time that he issued the summons. Section 8407, Rev. Codes 1905, provides that a notice to quit “must be given * * * before proceedings can be instituted.” There is no statutory requirement that the notice must be filed before summons is issued. We do not think that the absence of a showing that the notice to quit was on file with the justice when the summons was issued defeats his jurisdiction. If such a notice is given before the summons is issued, and that fact is shown on the trial, his jurisdiction is not lost. It is the giving of the notice, and not the filing of it with the justice, that is requisite before the action can be properly instituted. It would be adding to the statutory requirements to hold that filing of the notice is a jurisdictional prerequisite to the commencement of an action. Reliance is placed on N. W. Loan & Banking Co. v. Jonason et al., 12 S. D. 618, 82 N. W. 94, to sustain appellant's contention. The sole question in that case was whether the notice to quit must necessarily be offered in evidence, and it was held that on filing of the same with the justice it became a part of the record. What is there said concerning the necessity of filing the notice before the justice could acquire jurisdiction does not pertain to the point involved and decided. It is true that the service of such notice is a condition precedent to the...