Tepper Bros. v. Buttross

• Decision Date: 24 May 1937
• Docket Number: 32757
• Citation: 174 So. 556,178 Miss. 659
• Court: Mississippi Supreme Court
• Parties: TEPPER BROS. v. BUTTROSS

174 So. 556

178 Miss. 659

TEPPER BROS. v. BUTTROSS

No. 32757

Supreme Court of Mississippi

May 24, 1937

Division B

1 JUDGMENT. Landlord and tenant.

The statutory remedy of recovery of double rent for tenant's holding over is exclusive, and hence recovery thereunder in dispossessory proceedings was res judicata of landlords' action for damages, notwithstanding another statute permitting recovery of both penalty and actual damages in certain cases (Code 1930, secs. 2225, 3411).

2 STATUTES.

Where statute enumerates powers given, none will be implied.

HON. J P. ALEXANDER, Judge.

APPEAL from the circuit court of Madison county HON. J. P. ALEXANDER, Judge.

Action by Tepper Bros. against David Buttross. From a judgment for defendant, plaintiffs appeal. Affirmed.

Affirmed.

H. B. Greaves and A. K. Foot, both of Canton, for appellants.

Counsel for appellee cites in support of his contention that the double damages allowed by the statute for tenants holding over after notice was the only damages which could be recovered and that having been paid before this suit was called for trial, this suit was not maintainable. That was the point pressed in the argument in the lower court, and which was sustained under decisions construing sections 4976 and 4977 of the Code of 1906, which provides penalty for trespass by cutting trees.

It is manifest that the legislative body intended that both actual value and penalty could be recovered in the same suit, because this section was amended since those decisions, and we find it in the Acts of 1924, and now in the Code of 1930, as section 3411.

Gilchrist-Fordney Co. v. Parker, 109 Miss. 446; Taylor's Landlord and Tenant (5 Ed.), sec. 530, page 391.

In Weathersby v. Brown, 113 Miss. 887, the court held that payment of double rent was made absolute without regard to good or bad faith in so doing.

In Stollenwerek v. Eure, 120 Miss. 233. first opinion 119 Miss. 854, it was held that the imposition of double rent in a proceeding of this kind that; it is not necessary to set out any claim or demand for double rent, but same was recoverable as an incident to holding over. In reply to suggestion of error, 120 Miss. 234, the court said again "that the holding over need not be wilful or with a bad purpose and that the double rent is made absolute by section 2883, Code 1906, without reference to the good faith or bad faith in so doing."

In the case of Pinnex v. Jones, 127 Miss. 764, it is held that a notice to quit given by the landlord to his tenant will inure to the benefit of a purchaser of the leased premises.

I submit with confidence my construction of section 2225 of the Code of 1930, that the decisions relied on by appellee with reference to trespass (cutting trees) has no application here.

The payment to the landlord of double rent was written in the statute for the expressed purpose of deterring tenants from holding over after their lease expired and without regard to good or bad faith, and never was intended as a substitute for actual damages such as here claimed, which might accrue to the party entitled to the possession.

Under the statute, formal pleading is not necessary. The lack of wilfulness is no excuse. There was no other issue involved except amount of rent due at the time of the expiration of the lease, and in this case the rent was automatically doubled.

Stollenwerck v. Eure, 120 Miss. 233; Paxton v. Oliver, 70 Miss. 507.

Ray & Spivey, of Canton, for appellee.

We find no decisions in this state nor in other states having a similar statute where the right to recover both the statutory double rent and damages is adjudicated. But the statutes prescribing penalties for cutting timber and for boxing trees for turpentine are almost identical in both form and substance with the rent statute and these statutes have been repeatedly construed.

Roell v. Shields, 124 Miss. 226, 86 So. 763; Sandy Bayou case, 87 Miss. 125; Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Ladiner v. Ingrain Day Lbr. Co., 123 Miss. 238, 85 So. 196; Bollinger-Franklin Lbr. Co. v. Tullos, 124 Miss. 855, 87 So. 486.

After its amendment by chapter 167, Laws of 1924, which authorizes the recovery of both the penalty and the value of the trees cut, this court in Fleming v. Dunigan Cooperage Co., 144 Miss. 769, 109 So. 851, held the amendment could not be applied to transactions which occurred prior to its enactment.

Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650.

Appellants contend that the cases above cited are not authority here because appellee was not a trespasser and therefore the judicial construction of statutes dealing with trespasses has no application. We cannot conceive by what manner of reasoning counsel could argue that this court should deal thus harshly with one who is not a trespasser and require such a person to pay both the penalty and the damages sustained while the liability of one who wilfully trespasses and cuts or boxes the trees of another is limited to either the penalty or the damages. But, as much to our advantage as it might be to do so, we cannot agreed with appellants on the classification in which they have thus attempted to place appellee.

4 Words & Phrases (2 Ed.), 1000.

It is optional with a landlord whether he will treat a tenant holding over as a trespasser or a tenant.

35 C. J. 1102.

It, therefore, follows that dealing as they do with redress for civil wrongs all falling in the same class the construction of any one of the three statutes is authoritative in cases arising under either of the other two. The same reasoning which sustained and justified the rules announced in the cases under the timber trespass statutes will apply with equal force to cases arising under the rent statute.

Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Ladnier v. Ingram-Day Lbr. Co., 123 Miss. 238; Bollinger-Pranklin Lbr. Co. v. Tullos, 124 Miss. 855, 87 So. 486; Roell v. Shields, 124 Miss. 226, 86 So. 763; 36 C. J. 394; Vizard Investment Co. v. Mobile Fish & Oyster Co., 73 So. 328.

We respectfully submit that the analogy between the timber trespass statute and the double rent statute is too striking to admit of a holding that in one instance both the penalty and the damages can be recovered while in the other the owner of the property is limited to an election between the two remedies.

Hines v. Imperial Naval Stores, 101 Miss. 802, 58 So. 650.

OPINION

Ethridge, P. J.

On September 8, 1936, the appellants filed dispossessory proceedings against appellee in the mayor's court in the city of Canton, where they obtained judgment for possession of the property and the statutory double rent. Appellee appealed to the circuit court, where on ...