Stollenwerck v. Eure

• Decision Date: 19 May 1919
• Docket Number: 20705
• Citation: 119 Miss. 854,81 So. 594
• Court: Mississippi Supreme Court
• Parties: STOLLENWERCH ET AL. v. EURE

81 So. 594

119 Miss. 854

STOLLENWERCH ET AL. v. EURE

No. 20705

Supreme Court of Mississippi

May 19, 1919

Division B

1. LANDLORD AND TENANT. Appeal to circuit court. Judgment for rent.

In a proceeding by a landlord under Code 1906, section 2885 (Hemingway's Code, section 2383), to get possession of the rented premises, the trial being before a special court provided for by chapter 76, Code 1906 (chapter 43 Hemingway's Code), the circuit court on appeal could render judgment for rent up to the time of trial in the circuit court such trial being de novo, although the affidavit in the lower court did not charge that rent was due.

2. JUSTICE OF THE PEACE. Appeal. Jurisdiction. Amount.

The court provided in Code 1906, section 2885 (Hemingway's Code, section 2383) is a special court created under the power conferred under section 172, of the Constitution and is not limited by the provision defining the jurisdiction of a justice of the peace as such in section 171 of the Constitution. The jurisdiction of the justice of the peace under this section is co-extensive with the county, and on an appeal from such court the circuit court trying the case de novo has jurisdiction to render judgment in excess of two hundred dollars.

3. LANDLORD AND TENANT. Failure to vacate. Double rent.

Where a tenant is notified to quit the rented premises and fails to do so at the expiration of his lease, double rent follows and is to be sued for and recovered in the same way as single rent would be but for the giving of the notice.

4 SAME.

Under the facts in this case as set out in its opinion the court held that the correspondence showed clearly and definitely the time at which the tenant's right ceased and that the tenant was distinctly given notice to vacate for more than the statutory period and that his failure to vacate brought him within the statute imposing the double rent.

HON PAUL B. JOHNSON, Judge.

APPEAL from the circuit court of Forrest county, HON. PAUL B JOHNSON, Judge.

Action by C. C. Eure against E. F. Stollenwerch. On appeal to the circuit court there was judgment for plaintiff against defendant and the United States Fidelity & Guaranty Company, surety on appeal bond, and Stollenwerch appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Tally & Mayson for appellants.

It is apparent that learned counsel for appellee misconceived the import of the pleadings and the issue involved. The appellant entered under a contract made in 1917; he stayed on the premises by virtue of the entry made under the contract. The tenancy had never been terminated by either party by the 10th of February, 1918. Negotiations were pending, but certainly they were referable to the original contract. There is no difference whatever as to the terms of the agreement when appellee offered the appellant the premises for another year in March, 1918, and appellant accepted April 5, 1918, except the rent had been materially increased from thirty-five dollars to sixty dollars per month. The letters showing the negotiations and the final culmination of the negotiations in the contract of April 5th, were introduced not by the appellant, but by the appellee. There is nothing, then, in the contention that the letters subsequent to February 10, 1918, did not show any right of the appellant to further hold the premises, under the original lease.

Learned counsel makes labored effort to convince the court that the circuit court, on appeal in this case, had authority to render a personal money judgment against the appellant, and the surety on his bond. The authorities they cite not only fail to support such a contention but they are in harmony with the views contended for by appellant. That no such power was vested in the circuit court, they rely principally though not exclusively on the case of Simpson v. Boykin, 79 So. 852. An examination of that case shows that it conclusively supports appellant's contention and in fact is an authority for him, and if the case had been called to our attention when we prepared our brief in chief, we would have cited it. The plaintiff in that case proceeded in the justice court, as the plaintiff did in the case at bar. In order to give the justice court jurisdiction to hear and determine the case. Two facts were alleged in the affidavit--First: That the defendant's lease expired and that he held on; Second: that he was in arrears for rent in the sum of nine hundred dollars which he failed to pay. A writ was issued on the affidavit.

The case was tried in the justice court and appealed by the defendant to the circuit court. The appeal was dismissed on motion of the plaintiff. The point was sought to be made by the defendant that because the rent due and owing, amounting to nine hundred dollars and which was stated in the affidavit as a mere incident, as to why possession should be obtained by plaintiff, that plaintiff was seeking to recover property where the sum and value exceeded the justice jurisdictional amount. However, such was not the case. It was manifestly the intention of the legislature to confer upon the justice power to dispossess refractory tenants who remained over without right, without reference to the value of the property or the amount involved. If the rent due and owing it was altogether unnecessary to obtain the judgment of the justice of the peace to recover the same. As we have heretofore stated, all that was necessary was for the landlord to make affidavit of that fact and which affidavit had really the same force and effect of a writ of execution. And that under the writ the officer would proceed to sell whatever was seized unless replevied; that it takes a replevin affidavit in the first instance to create a law-suit and the deduction to be drawn from all the statutes on the question is that when the attachment writ is executed, replevin affidavit made, then the papers are referable to the court having jurisdiction. Says this court in this case (Simpson v. Boykin, 79 So. 862, at the bottom of page 854): "This suit does not involve a demand for the value of the land or the value of the possession for any given period of time, but only for possession; but if the value of the use of the land applied the only value to be found would be the value between the termination of the tenancy and the date of the judgment, which, in this case, would be only eleven days."

It is perfectly apparent from the opinion that neither the justice court nor the circuit court undertook to render a personal judgment against the defendant in that suit in addition to a judgment of ouster of possession. It is true, as we have stated in our brief in chief, that on appropriate proceedings on an appeal from an unlawful entry or detainer court, that rent (not double rent) could be recovered, but that is the court upon which jurisdiction is specially conferred by the statute.

The summons must be served more than five days, and while in the case at bar the defendant did appear in the justice court, he appeared after having been summoned but three days before the time designated, for the sole purpose of contesting the question of unlawful possession vel non, and not for the purpose of combating a demand for personal money judgment that was sought to be recovered, when none was sought.

The court might, of course, have jurisdiction for one purpose and not for another. The justice court in this case might have jurisdiction to determine whether or not Mr. Stollenwerck was unlawfully withholding the premises, but it would not be seriously contended that that court had jurisdiction to render a decree of divorce against him, nor is it thought it would have power to adjudge that he was owing the plaintiff a debt evidenced by a promissory note wholly unconnected with the rent matter.

In conclusion we re-assert that under section 2885 of the Code of 1906 (Hemingway's Code 2383), that the only judgment that could be rendered was a judgment of dispossession; that on appeal to the circuit court the only judgment that could be rendered would be such a judgment as a justice of the peace could render.

J. C. Hannah and A. A. Hearst, for appellee.

We submit that unless the appellant here can establish that he renewed this yearly lease of this property by continuing possession thereof in accordance with his defense in this case, that he must fail and that the judgment of the lower court must be affirmed because the supreme court of our state in the case of Vicksburg Manufacturing & Supply Company v. Jaffray Construction Company, 94 Miss. 282, 49 So. 116, says: "We reiterate what has so often been said by this court, that parties must in this court abide by the issue made in the lower court by the pleadings and proof." Therefore we submit that all of the argument contained in the brief of able counsel for appellant with reference to the proposed and alleged contract made between appellant and appellee by their letters of March 23rd, and April the 5th, is wholly irrelevant.

But appellant complains bitterly that the circuit court not only rendered a judgment for the possession of the property, but likewise a judgment for double rent from the 10th day of August until the trial. And learned counsel strenuously contend that this was an unheard of procedure and that the circuit court was wholly without jurisdiction to render such a judgment. We submit, on the authority of the statute and the decided cases, that this argument is unsound and untenable.

From a judgment of the justice court directing appellant to deliver possession of this property he sought an appeal to the circuit court. Section 2895, Miss. Code of 1906 (Hemingway's Code, 2393), provides this right in the following language: "Proceedings...