Byrne v. Morrison

No. 1443 | D.C. Cir. | Feb 8, 1905

Mr. Chief Justice Shepard

delivered the opinion of the 'Court :

2. We perceive no substantial objection to the notice to quit. It does not specify the day of the termination of the lease, a fact .not required, and one presumably as well known to the defendant as to the complainant. It was dated October 23, 1903, and •served the full thirty days before the end of the term, as re-squired. Code, sec. 1219.

3. It is true that the receipt of rent by a landlord, after notice to quit, of rent for a new term or part thereof, amounts to a waiver of his right to demand possession under that notice. 2 Taylor, Land & T. § 485; Collins v. Canty, 6 Cush. 415; Croft v. Lumley, 5 El. & Bl. 648, 680, El. Bl. & El. 1069.

But the receipt of rent for the current month pending the notice to quit cannot have that effect, and that was all that was done in this instance. The written receipt recites that it is for-Tent for the month ending November 25, 1903, which is the -date of expiration named in the lease.

4. Section 1233 of the Code authorizes judgment, where an ■appeal has been taken from the judgment of the justice of the peace, to be entered against the appellant and the surety on his "bond for “all intervening damages to the leased property and compensation for the use and occupation thereof from the date of the judgment appealed from to the date of its affirmance.” [31 Stat. at L. 1383, chap. 854.] This, of course, does not mean the rent stipulated in the expired contract, but the reasonable value of the use and occupation, together with damage that may have been done to the property.

The recital in the verdict that the sum of $80 was found therein for intervening rent and damages was an unnecessary one. It was not so returned in obedience to any instruction of the court, so far as the record shows. It must have been found upon some evidence, but what that evidence was we are not informed by the bill of exceptions. It must be presumed, therefore, that there was proof of intervening damages and value of use and occupation to the full amount found. There is nothing to indicate that the form of the verdict was called to the attention of the court before the jury was discharged, and it is further to be presumed that, if it had been, it would have been •amended. If the jury were directed to find for the plaintiff according to the stipulation of the lease, or the evidence was confined to that, and not directed to damages and value of occupation, it was the duty of the defendant to make the proper objection and present it in her bill of exceptions.

5. According to the date given in the bill of exceptions for the expiration of the month, namely, November 25, the complaint was prematurely filed. It was one day before the time, because if the month expired on the 25th the defendant was entitled to possession for the whole of that day. It was suggested on the argument by appellee’s counsel that the month expired on November 24, as actually recited in the lease, and had been misrecited in the bill of exceptions. Be that as it may, we must accept the bill of exceptions, which cannot now be corrected, or at any time in that way.

The point that the suit had been prematurely filed was not made in either of the trial courts. The fact was not called to the attention of either court by plea, motion, or suggestion. The motion in arrest of judgment does not mention it as one of its grounds. It is too late to raise the question for the first time on this, the second, appeal.

6. It appears that a writ of possession was issued on the judgment below on March 28, 1904, and executed the same day. On April 1, the defendant entered notice of appeal, but filed no-bond therefor until April 12. On the last-named day she moved to quash the writ of restitution because it could not lawfully issue during the time allowed for perfecting the appeal to this, court. This was overruled and exception taken. There was no error, i It is declared in see. 1074 of the Code that “where the right to issue an execution is not suspended by agreement, or by an injunction, or by an appeal operating as a supersedeas, a writ of execution may be issued immediately on the rendition of the judgment or at any time within three years thereafter.” [31 Stat. at L. 1358, chap. 854.] The entry of notice of appeal can have no effect whatever, though, perhaps, the court might, in its discretion and for good cause shown, suspend the execution for a reasonable time after judgment.

Finding no reversible error in the record, the judgment will be affirmed with costs. It is so ordered. Affirmed.