152 P. 750 | Mont. | 1915
delivered the opinion of the court.
Appeal from an order granting a motion for a new trial. The grounds assigned in the notice of intention were: Insufficiency of the evidence to justify the verdict, that the verdict is against law, and errors of law occurring at the trial. The first of these grounds is not before us, because the motion was heard on the minutes of the court by a judge who did not preside at the trial, and, as conceded on oral argument by both parties, it was not, and could not have been, granted for insufficiency of the evidence. The second ground is plainly without merit. The respondent does not indicate, nor does the record disclose, any contrariety between the verdict and the instructions. A verdict is
The cause originated in the justice court upon a complaint which alleged the letting of a certain dwelling to the defendant, his failure to pay the rent stipulated in the lease, the amount of such rent due, service on July 5, 1911, of a written demand that he' pay the rent due or quit the premises, his refusal to do either, and that he “unlawfully holds and continues in the possession of the said premises * * * without permission of the plaintiff.” The prayer was “for the sum of $290, rent due, for the restitution of the said premises, and for costs of suit.” Issue was joined and the cause tried before the justice of the peace, who, on August 7,1911, found all the allegations of the complaint to be true, ‘ ‘ and that the defendant unlawfully holds possession of the premises described in the complaint after default in the payment of rent,” and adjudged “that the plaintiff do have and recover * * the possession” of the premises “and the sum of $290 as rent.”
The defendant appealed to the district court, and in that court an amended complaint was filed which differs from the original complaint in its failure to specifically state that the defendant was holding, or ever had held, possession without the plaintiff’s permission; but it alleges that: “The defendant refused to deliver up the possession of the said premises until on or about the -day of April, 1912, when he was compelled so to do by process of court duly issued herein.” The defendant answered: (1) Denying any default in the payment of rent, service of notice to pay or quit or voluntary surrender of the premises, and alleging a forcible eviction therefrom: (2) asserting a counterclaim for damages based upon averments that it was the duty of
Upon the trial the presiding judge ruled that, possession of the premises having been restored to the plaintiff, the' issue of unlawful detainer was no longer in the case and restricted the plaintiff’s evidence to the issue of unpaid rent. He also refused to admit any testimony in support of the defendant’s last two counterclaims. At the close of all the evidence, the defendant moved for a directed verdict, upon the ground that the amended complaint and the case made under it constituted a material and fatal departure from the cause of action as originally brought. This was overruled, and the court, by instructions given and refused, authorized the jury to find a verdict for rent only, and denied the right of defendant to have an offset for repairs in excess of $72.50, the amount of one month’s rent. The jury returned a plaintiff’s verdict for $217.50 on which judgment was entered.
The contentions are that the motion for new trial was properly granted because the trial court erroneously permitted the case to go to the jury as an action for rent only, because the rulings rejecting evidence in support of defendant’s last two counterclaims
1. In support of the first contention, it is suggested that the action as brought and determined in the justice’s court was for
In our opinion the trial judge had jurisdiction to entertain the cause upon the question of rent only; it was “consistent with the case made by the complaint and embraced within the issues. ’ ’ (Rev. Codes, see. 6713.) Our statute is so worded, however, that .
2. The rulings refusing to admit the evidence in support of the last two counterclaims were justified by almost unbroken authority. The statutes under which the right to recover upon
3. The dilapidations, the cost of repairing which was sought
The order appealed from is therefore affirmed.
Affirmed.
Rehearing denied November 16, 1915.