Beck v. Glenn, 69 Ala. 121

Beck v. Glenn

69 Ala. 121 | Ala. | 1881

SOMENVTLLE, J.

This is an action of unlawful detainer,, commenced before a justice of the peace, and removed by appeal to the Circuit Court, where a trial was had de novo as-required by statute.

It is objected, by the appellant, that neither the verdict nor judgment rendered against him as defendant, in the court below, is in conformity to the statute. This objection, we-think, is not well' taken.

The premises sued for are described with reasonable, and even accurate certainty, in the complaint, being designated as “The N. ‡ of lot No. 8, in the town of Georgiana, Butler county, Alabama, on which said lot is situated a bar-room, which was occupied by Wilson Beck, the defendant, during the-year 1879.” — Townsend v. Van Aspen, 38 Ala. 572; House v. Camp, 32 Ala. 541; Wright v. Lyle, 4 Ala. 112; Cunningham v. Green, 3 Ala. 127.

The finding of the jury had special reference to this description given in the complaint, and assessed damages against the-defendant for double the amount of annual rent for detention • of the premises, after expiration of his lease. — Code, 1876, 3709. The judgment properly followed the verdict, the costs-of suit being adjudged against the defendant and the sureties . on his appeal bond, and the recovery against- the sureties being, limited to the penalty of the bond. The sureties on the bond, which was given to prevent the issue of the writ of restitution, were liable for the assessment for rent, and it was so adjudged. Code, § 3710. The verdict and judgment were fully authorized by the statute.

It was no defense to the action that the plaintiff regained possession of the premises pending the appeal by the defendant to the Circuit Court. In Lomax v. Spear, 51 Ala. 532, it was said by this court, that if the defendant could take advantage of such entry by the plaintiff at all, he could only do so by a plea puis darrien eontimua/nce. It is true that such a plea was adjudged good in actions of ejectment at common law, but the reason no doubt was, that ejectment was not then, as now under our statute, a mixed action in which the plaintiff was permitted to recover rent by way of damages. The only questions in. *126issue were those of title and possession, and no recovery could be had unless the plaintiff had title on the day of trial, or unless he was then dispossessed. — Tyler on Eject. 468-Í70. The action of unlawful detainer is but a summary substitute by statute for ejectment, and a similar rule should obtain in each class pf cases. The better view, we think, is, that such a plea is not a defense to these actions, where damages for rent are recoverable, for, as said in Venner v. Underwood, 1 Root (Conn.), 73, “ the original wrong and disseizen, and the damages still remain to be redressed.” In this case the plea was held insufficient on demurrer, and we think it announced the correct rule of law on the subject. See also Kennedy v. Holman, 19 Ala. 734; and opinion of Manning, J., in Lomax v. Spear, 51 Ala. 532, 538.

There is nothing in the suggestion that the jurisdiction conferred on justices of the peace by the legislature, in proceedings of unlawful detainer, is violative of the constitution. In such cases the value of the premises is totally immaterial, and has no relevancy to the proceeding. Such has been the established doctrine in this State for more than fifty years.— Ward v. Lewis, 1 Stew. 26. The case of Webb v. Carlisle, 65 Ala. 313, merely declares, that where an attempt is made to confer on justices of the peace the authority to try titles to real estate, without regard -to the value of the land, it would be objectionable on constitutional grounds. Justices of the peace can not be given jurisdiction of ejectment cases generally by calling them actions of unlawful detainer.

There was no error in the refusal of the Circuit Court to permit the defendants’ plea in abatement to be filed. The justice of the peace had declined to receive it on the ground of delay in filing it. While the rule of practice relating to such pleas in the Circuit Court can not be literally or technically applied, perhaps, in a justice’s court, it certainly can be by analogy, to a certain extent. The reason of the l'ule applies with equal force to all the inferior courts. Pleas in abatement are dilatory, and are disfavored by the law on this account. They are required to be filed as soon as practicable, so as to prevent the unnecessary accumulation of costs occasioned by protracted delay, and to guard against the hazard of a bar by the statute of limitations, in the event of an abatement of the action on some technical ground not touching the merits. — Code, 1876, p. 160, Rule 12, §§ 3012-13.

The charge of the court was more faverable to appellant than the law authorized. The general rule is, that, in order to maintain an action of unlawful detainer, the plaintiff must have been in actual possession of the premises sued for, mere constructive possession not being sufficient. Rut when the action is' *127brought by a landlord against a tenant for unlawfully holding over, after the termination of the tenant’s period of lease, the well settled rule applies, that the tenant’s possession is that of the landlord, and lie is estopped from disputing the fact of the landlord’s prior actual possession. — Code, §3697; Lecatt v. Stewart, 2 Stew. 474; Taylor’s Land. & Tenant, §§ 705, 713, et seq. The defendant, Beck, lawfully entered into the possession of premises admitted by him to belong to Glenn, and his possessory interest as tenant had terminated, according to the finding of the jury. On demand in writing by the landlord, in' such cases, and the refusal of the tenant to deliver possession, the action of unlawful detainer will lie. This action concerns exclusively the right of possession, and the estate, or merits of the title are forbidden to be investigated. — Code, §§ 3697, 3704; Hightower v. Fitzpatrick, 42 Ala. 597; Townsend v. Van Aspen, 38 Ala. 572.

We find no error in the record, and the judgment of the Circuit Court is affirmed.