Shaffer v. Austin

• Decision Date: 09 January 1904
• Docket Number: 13,371
• Citation: 74 P. 1118,68 Kan. 234
• Parties: W. G. SHAFFER v. NOBLE F. AUSTIN
• Court: Kansas Supreme Court

74 P. 1118

68 Kan. 234

W. G. SHAFFER v. NOBLE F. AUSTIN

No. 13,371

Supreme Court of Kansas

January 9, 1904

Decided January, 1904.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

STATEMENT.

ON June 27, 1899, W. G. Shaffer, plaintiff in error, by a lease in writing let to one J. T. Creamer eighty acres of farming land in Wyandotte county until March 1, 1901. There was a clause in the lease stipulating that "under no circumstances shall said land be sublet to Noble F. Austin or wife." There was a further provision that the tenant "will not make or suffer any waste thereof, nor lease, nor underlet, or permit any other person or persons to occupy the same without the consent of said party of the first part (the landlord) in writing having been first obtained." It was also stipulated that if the lessee should fail to perform any of his covenants and agreements it should be lawful for the lessor, without notice or demand of any kind whatever, to treat the lease as at an end and void, and to reenter and take possession of the premises by an action of forcible detainer or otherwise.

In February, 1900, Noble F. Austin, defendant in error in this case, brought an action of ejectment in the district court of Wyandotte county against J. T. Creamer, the tenant of Shaffer, to recover possession of the land described in the lease. Shaffer made application to the court, asking to be made a party defendant, setting forth that he was the owner of the property and had leased it to Creamer until March 1 1901, and that the latter refused to defend the action. The reason given by Shaffer in the application was "that He may protect his interests in said real estate and his possession through his tenant."

The answer of Shaffer in the ejectment action contained, first, a general denial of all the allegations of Austin's petition; and second, an allegation that the defendant Shaffer was the owner in fee simple of the land and in possession of it through Creamer, his tenant. He prayed that his title might be quieted as against Austin. The action was tried in July and resulted in a judgment in favor of Shaffer rendered on September 22, 1900, following. The journal entry recited:

"And now on this day this cause comes further on for the findings and judgment of the court, the evidence and argument of counsel having heretofore been fully heard and by the court taken under advisement; and the court being now well and fully advised in the premises finds for the defendant and against the said plaintiff on the issues joined herein, and cloth order and adjudge that said plaintiff take nothing by his said suit, and that said defendant go hence without day and have and recover of and from said plaintiff the costs herein expended, taxed at $ 20.20; and thereof let execution issue."

On January 31, 1901, the defendant Shaffer moved the court for a nunc pro tunc order allowing him a writ of assistance in the ejectment action. The application was granted, and the original journal entry corrected.

In October, 1900, one D. R. Austin, a son of the defendant in error, moved onto the farm as a subtenant of Creamer without the knowledge or consent of the landlord. In November or December Creamer, the tenant, abandoned the premises and moved away. Plaintiff below, Noble F. Austin, went on the premises as a guest of his son in October.

In January, 1901, a writ of assistance was issued at the instance of Shaffer, the defendant in the ejectment action commanding the sheriff to "cause the said Noble F. Austin and all persons claiming under him to be dispossessed and the said W. G. Shaffer to be put into the possession of said real property." This writ was not served for lack of time. An alias writ was issued on February 11, 1901, and executed on February 20 by dispossessing Austin from the land.

This was an action by Austin for wrongful ejectment. The petition alleges that defendant below, through one Gleed, a deputy sheriff, wilfully and maliciously seized plaintiff and by violence put him and his personal belongings off from the premises and into a public road. A jury trial was had which resulted in a verdict against Shaffer for $ 1000. He complains here.

SYLLABUS

SYLLABUS BY THE COURT.

1. EJECTMENT -- Writ of Assistance. In an action of ejectment the possession of the defendant through a tenant was confessed. A judgment was entered in his favor. Held, that the allowance of a writ of assistance to put defendant in possession was beyond the issues in the case, and void.

2. ASSAULT AND BATTERY -- Only Nominal Damages Recoverable. A tenant sublet to another in violation of the conditions of the lease. A guest of the latter was dispossessed by the owner without legal process, and in so doing the landlord's agent took the visitor by the arm and led him off the premises, causing him no physical hurt. In an action for assault and battery and wrongful ejectment, brought by the guest of the subtenant against the landlord, held, that he could recover no more than nominal damages.

McGrew Watson & Watson, and J. W. Jenkins, for plaintiff in error.

Getty Hutchings & Dean, and...