Bowles v. Dean

84 Miss. 376 | Miss. | 1904

Oalhoon, J.,

delivered the opinion of the court.

So far as this record shows, the proceedings were begun under Code 1892, § 2547 et seq., by. an affidavit before a justice of the peace, showing that there personally appeared '“J. T. Dean, agt. for G. G. Dean, who makes oath that T. A.. Bowles, a tenant for a part of the year 1903, of G. G. Dean, for a certain lot of land described as [describing it], holds over and continues in possession of said premises after the expiration of his term, without permission of the landlord, G. G. Dean; wherefore he prays for a writ to issue requiring the said T. A. Bowles to remove from said premises, or to show cause why possession of same should not be delivered to said G. G. Dean.” This is signed “J. T. Dean,” and sworn to by him. This affidavit is defective in not fulfilling the requirements of Code 1892, § 2548, which are that it shall show “the facts which, according to the last preceding section, authorize the removal of the tenant, . . . and that the necessary notice has been given to terminate such tenancy.” However, we do not think it defective on the ground that it does not show that the three days’ notice in writing requiring payment, under the second clause of the preceding section, had been given. This proceeding is not under that clause, but under the-first, as to a tenant holding over after the expiration •of his term, and this requires no notice, as does the second, which is for default in the payment of the rent. The defect in the affidavit is in the failing to exhibit facts to enable the -court to determine from their statement that there was the relation of landlord and tenant, that there was a term of lease, and what that term was, with its beginning and ending. But we refuse to hold that, because these matters appear only inferentially and without particularization, the circuit court •erred in not sustaining absolutely a motion to dismiss “the affidavit and this cause.” This should follow only if the landlord declined to amend; and we think he might amend, under Code 1892, § 717, so as to bring the merits to trial. The proceedings in the court of the justice of the peace do not show on their face any objection made to the sufficiency of the affidavit, but show mer.ely the appearance of the parties, that argument was heard on evidence adduced, and judgment for ^plaintiff, Dean. Mr. Bowles appealed to the circuit court, where he made the motion to dismiss, which we have referred to and passed upon. He then made a motion to be allowed to file in that court for the first time his affidavit denying the facts set out in plaintiffs affidavit, accompanying the motion with an affidavit showing good reason why it was not filed in the justice of the peace court. His motion was overruled. This was error. Harvey v. Clark 81 Miss., 166 (32 South., 906).

Reversed and remanded.