Zindler v. Buchanon.
| Decision Date | 27 September 1948 |
| Docket Number | No. 670.,670. |
| Citation | 61 A.2d 616 |
| Parties | ZINDLER v. BUCHANON. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Action by Cecil C. Buchanon against Mildred Zindler to recover possession of an apartment, wherein defendant filed a counterclaim. From a judgment for plaintiff, defendant appeals.
Affirmed.
John W. Cragun, of Washington, D. C., for appellant.
Milton Mindell, of Washington, D. C. (Albert Brick, of Washington, D. C., on the brief), for appellee.
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
Appellee, who was the plaintiff below, began this action in the Landlord and Tenant Branch, Municipal Court, to recover possession of an apartment occupied by appellant on the ground that she was in default of one month's rent. No claim for the rent itself was made. Appellant answered, denying owing any rent, and counterclaimed for a much larger amount upon the ground that appellee had failed and refused to furnish the minimum services required of the landlord under the District of Columbia Emergency Rent Act. 1 The trial court, sitting without a jury, found as a fact that there was no failure to furnish the minimum service standard and gave judgment for possession for appellee. This appeal followed.
We are met first with a motion by appellee ‘to delete count for possession and decide case on appellant's counter-claim.’ This motion was filed here after oral argument of the appeal. The principal ground assigned for the motion is that since the trial in the court below appellant has returned the keys of the apartment to appellee and ‘voluntarily’ quit the premises. The motion is without merit. The record shows that no supersedeas bond to stay the judgment was filed but that appellant left the premises only after being served by the United States marshal with an eviction notice based upon the judgment for possession. Appellant also notified appellee that an appeal from the judgment was being taken and that if the appeal was successful appellee ‘will expect restitution of the premises in question.’ It is obvious that surrender of the premises under such conditions is not voluntary and does not render the appeal moot. 2
Appellant urges two principal grounds for the reversal of the judgment, first that appellee at the trial did not prove either that a thirty days' notice to quit had been served upon appellee or that there had been a waiver of such notice. In the complaint it was alleged that service of a notice to quit had been specifically waived in writing. This was denied in appellant's answer. The statement of proceedings and evidence certified to us by the trial court is silent on the subject, but the trial court has certified a supplemental statement to the effect that no evidence on the question was adduced at the trial. Counsel have filed a supplemental stipulation of fact showing that the absence of such proof was not called to the court's attention except by the pleadings. Appellant raised the point in her assignment of errors and in her brief. Under such circumstances we conclude that the point was waived by appellant. As has been well said, appellate courts are established for correction of the errors of trial courts, 3 and ‘only in very exceptional cases can a point not brought to the attention of the court below and not passed upon by that court be raised upon appeal.' 4 The applicability of this rule to the present case is emphasized by the fact that throughout the trial appellant was represented by experienced counsel, whereas during the first day of the trial while appellee's case was being presented he was not represented by counsel. Furthermore, appellant filed a motion for a new trial in which various other points were raised but in which the question of a thirty days' notice was not mentioned. The statute authorizes the waiver of a thirty days' notice, 5 and, while a notice to quit is a condition precedent to filing such a suit, this is not true in a jurisdictional sense. 6 We believe that failure to urge the point in the trial court was the equivalent of such a waiver or at least waiver of proof of notice.
Appellant next urges that the trial court erred in failing to give her judgment on her counterclaim. The counterclaim was based upon allegations that under the Emergency Rent Act the minimum services to be supplied by the landlord for this apartment included heat, hot water, furniture, furnishings, refrigerator, repairs, and water rent, and that appellee had failed in several respects, notably heat and repairs, to meet these requirements. But the trial court, in a memorandum, found as a fact that there had been no failure...
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