Wilson v. Williams

• Decision Date: 16 April 1946
• Docket Number: 32129.
• Citation: 169 P.2d 305,197 Okla. 191,1946 OK 134
• Parties: WILSON v. WILLIAMS.
• Court: Oklahoma Supreme Court

169 P.2d 305

197 Okla. 191, 1946 OK 134

WILSON v. WILLIAMS.

No. 32129.

Supreme Court of Oklahoma

April 16, 1946

Rehearing Denied June 4, 1946.

Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.

Forcible entry and detainer action by Canton E. Williams against F. W Wilson. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Syllabus by the Court.

1. 39 O.S.1941 section 395, requiring notice to be given three days before suit in forcible entry and detainer is commenced contemplates substantial compliance; where giving of such notice is proved, the requirements of the statute as to pleading and proof of notice are satisfied.

2. Where premises were described by lot and block, but as in 'Military Park Addition' instead of 'Military Addition,' but notices were served at proper address defendant admitted possession of premises and did not show any prejudice resulting therefrom, the error is to be disregarded and such notice held to be sufficient, since purpose of notice under the statute is to apprise defendant of the premises sought to be recovered.

3. Refusal to permit introduction in evidence of letter written by disinterested party, offered to prove matter in dispute between litigants, was not error.

Lee Gill, of Oklahoma City, for plaintiff in error.

Fred L. Hoyt, Arthur H. Dolman, and Suits & Fellers, all of Oklahoma City, for defendant in error.

CORN Justice.

Presented for consideration herein is a judgment of the District Court rendered on trial de novo, in an appeal by defendant from a judgment before a justice of the peace in favor of plaintiff in a forcible entry and detainer action. Substantially the following facts are presented by the pleadings and the testimony.

For some years prior to January 13, 1944, defendant had rented certain premises located at 200 E. Second Street in Oklahoma City, Oklahoma, particularly described as:

'Lots 14 and 15, Block 16, in Military Addition, to Oklahoma City, Oklahoma.'

The premises were rented on a month to month basis, the rent being due the 15th of each month, and had been operated by defendant as a rooming house for negroes.

In January, 1944, the owner sold this property to plaintiff, the contract of sale providing for possession by March 1, 1944. Plaintiff advised defendant he had purchased the property and desired possession. Defendant did not vacate and plaintiff, on March 13, 1944, caused thirty day notice to quit to be served upon defendant, advising him of termination of such tenancy as of April 15, 1944.

The notice served on defendant described the premises by lot and block, and as being in 'Miliary Park Addition' rather than 'Military Addition' to the City of Oklahoma City. However, the notice was served upon defendant at the correct address, further describing the property as 'held by you as tenant.'

Defendant did not respond to said notice and plaintiff caused a three day notice to be served. Such notice was served on defendant on April 17, 1944. This notice likewise described the premises as 'Military Park Addition.' Defendant remained in possession and on April 22, 1944, plaintiff filed his verified complaint in the justice court, and this complaint likewise described the property by lot and block as 'Military Park Addition.'

Trial de novo in the district court again resulted in a jury verdict for plaintiff.

The defendant contends that the complaint filed in the justice court was fatally defective because of: (1) Failure to allege the three day notice was served more than three days before commencement of the action, and plaintiff failed to attach a copy of such notice to the complaint; (2) failure to allege the notice of termination of the tenancy was properly served; (3) failure to show certain federal rent control regulations had been complied with, or that compliance therewith was unnecessary; (4) and that the summons was issued before the complaint was filed.

39 O.S.1941 § 395 provides:

'It shall be the duty of the party desiring to commence an action under this article, to notify the adverse party to leave the premises, for the possession of which the action is about to be brought, which notice shall be served at least three days before commencing the action, by leaving a written copy with the defendant, or at his usual place of abode, if he cannot be found; such notice may also be served by leaving a copy thereof with some person over twelve years of age, on the premises described in the notice. R.L.1910, Par. 5507.'

Defendant urges that because plaintiff did not allege in the complaint that the three day notice was served more than three days prior to commencement of the action same was fatally defective. In this connection defendant insists the allegation in the complaint that the defendant had been notified 'as required by law' was not sufficient.

Numerous very early decisions from this court are cited to sustain defendant's position, such as Oklahoma City v. Hill, 4 Okl. 521, 46 P. 568; Richardson et al. v. Penny, 6 Okl. 328, 50 P. 231; Rice v. West, 10 Okl. 1, 33 P. 706, and other cases. Consideration of such early cases, as well as our later decisions, reflect that the requirements of the statute are held to be jurisdictional. However, we have not held in our former decisions, the rule contended for by defendant, to-wit, that in forcible entry and detainer the plaintiff must allege in the complaint that the required notice was served more than three days prior to filing of the action. We have expressly held in Hobbs v. McGhee, 100 Okl. 210, 229 P. 240, that substantial compliance with the statute is sufficient and the statute does not require such allegation to be contained in the complaint, but the giving of the notice must be proved.

It is apparent from the record that there was an affirmative showing of service of notice as required by the statute. Gibson v. Johnson, Adm'r, 180 Okl. 417, 69 P.2d 329; Sparks v. Calloway, 183 Okl. 332, 82 P.2d 830; Stephenson v. Malone, 179 Okl. 35, 64 P.2d 340.

Defendant contends the complaint was insufficient because of plaintiff's failure to allege compliance with federal rent control regulations, or that such compliance was unnecessary. During the cause of the trial defendant attempted to inject this matter into the case, and error is not alleged by reason of the trial court's refusal to permit the introduction of a copy of the regulations.

The evidence showed the building in question contained 46 rooms all of which were offered for rent except three or four defendant occupied as his personal quarters. Because defendant maintained his own quarters on the premises it is contended this was his home, since he lived there most of the time while...