84 A. 104 | Conn. | 1912
The complaint in summary process alleged these facts: the defendant entered into the possession of the leased premises on the first day of November, 1906, under a written lease from the estate of one Smith, deceased, for the term of five years from that date. In April, 1911, the widow and heirs of Smith conveyed the premises to the plaintiff, and the lease was duly assigned to him. On the 4th day of October, 1911, the plaintiff gave the defendant the statutory notice that he was to quit possession of the premises on or before November 1st, 1911. On November 1st, 1911, the lease expired by lapse of time; but the defendant neglected to quit possession of the premises, and continued to hold possession of the same until the complaint was issued on November 13th, 1911.
These facts were, for the most part, admitted by the first defense, and those not so admitted were, upon the trial, admitted or proved, as appears by the bill of exceptions.
A second defense read as follows: "1. On or about the day of May, 1911, the plaintiff leased to the defendant for the term of one year, commencing with the date of the expiration of the lease referred to in paragraph one of the plaintiff's complaint, the premises referred to in the plaintiff's complaint for the monthly rent of seventy dollars. 2. The defendant, who was in possession of said premises at the date of the expiration of said lease above referred to, continued in possession of said premises under said oral lease referred to in paragraph one of this defense, and has remained in possession thereof from that time until the present, under and by virtue of said lease. 3. The defendant is now occupying said premises by virtue of his right under said lease for one year, and said lease is now in full force and effect and does not expire until the day of 1912." *34
To this defense there was a demurrer, substantially upon the ground that the lease attempted to be set up in avoidance was in violation of the statute of frauds, because not to be performed within one year from the making thereof. The demurrer was overruled, the plaintiff filed a reply, and, upon a trial to a jury in the justice court, the defendant had a verdict.
The Court of Common Pleas treated the demurrer to the writ of error as equivalent to a plea of nothing erroneous, and rendered judgment for the plaintiff in error, upon the ground that the demurrer to the second defense was improperly overruled. As the same question which was thus decided is raised in all the other assignments of error which have been argued before us, it will not be necessary to consider each of those assignments separately.
As the parol lease set up in the answer was not to be performed within one year from the making thereof, it was void as contravening the statute of frauds. If the defendant entered under this void lease, his tenancy is not one created by the lease; but it may be one which the law will imply. Corbett v. Cochrane,
A motion was made by the defendant to dismiss the writ of error, upon the ground that a plaintiff in summary process has no right to sue out a writ of error from an erroneous judgment of a justice of the peace in such cases. Section 1087 of the General Statutes, as amended by chapter 104 of the Public Acts of 1907, p. 657, provides that when a defendant procures a writ of error in an action of summary process, he shall give a sufficient bond to the adverse party to answer for all rents that may accrue during the pendency of the writ of error; that he shall have forty-eight hours (Sundays not included) after judgment for filing his bill of exceptions and procuring a writ of error; and that execution shall be stayed during that time, if it appears to the justice that the writ is not procured for delay. This statute makes no reference to a writ of error by the plaintiff.
This Act was originally passed in 1852. The summary process statute had then been long in existence. So, also, had a statute, now General Statutes, § 817, permitting writs of error from justices of the peace by either party harmed by an erroneous judgment. Under the statute last named, writs of error had been allowed in summary process actions. See Du Bouchet v. Wharton,
There is no error.
In this opinion the other judges concurred.