174 P. 116 | Cal. Ct. App. | 1918
In this action defendants, Homer H. Peters, Jr., Peters Investment Company (a corporation), and Fidelity and Deposit Company of Maryland (a corporation), have appealed from a judgment entered in favor of the plaintiff. *359
The appeal of the last-named defendant was separately taken and will be disposed of in the opinion filed in Chase v. Peters,post, p. 815, [
In September, 1912, plaintiff made a written lease with defendant Homer H. Peters, Jr., leasing for a term of ninety-nine years certain real property in the city of San Diego. Prior to October, 1916, Peters, Jr., assigned the lease and delivered possession of the premises to the defendant Peters Investment Company. The installments of rental for the months of November and December, 1916, and January, February, March, April, and May, 1917, were not paid. A three-day notice in writing requiring the payment of such rental to be made was served upon the appellants. This notice contained the usual alternative demand for possession. Compliance was not made with the terms of the demand and this suit in unlawful detainer followed. The terms of the lease required the lessee to pay all taxes assessed against the property. There was a failure on the part of those in possession of the premises under the lease to pay taxes in the year 1916 to the amount of $3,132.28. Plaintiff asked and was allowed judgment for the amount of the taxes, as well as for accrued rental, against both of these appellants. These taxes the lessor was obliged to pay to protect his property from liens. The action, as characterized by the plaintiff, was distinctly a suit to recover possession of leased premises because of conditions broken, brought under the provisions of section 1159 et seq., Code of Civil Procedure. In his complaint the plaintiff set forth the facts concerning the lease transaction, showing the rent unpaid for the months named and also the amounts of the taxes which the lessor had been obliged to pay after default of the lessee in that particular. That the facts stated in the complaint, as we have briefly summarized them, were established by the evidence, is not disputed here. Homer H. Peters, Jr., and his successor under the lease, the Peters Investment Company, objected, both by demurrer and answer, to the complaint on the ground that there was a misjoinder of parties defendant and that different causes of action were improperly united.
The first contention amplified is that as appellant Peters, Jr., was not in possession of the premises at the time of the alleged unlawful detention thereof, he was not a proper party to the suit and no judgment could be legally rendered against *360 him. The point of misjoinder of parties defendant is also urged as to Peters Investment Company, but the argument in support thereof is not of the same potency as that available to defendant Peters, Jr., as will be developed in the discussion to follow. The second point assumes that both of the defendants were proper parties, but raises question as to the propriety of allowing a recovery for taxes paid by the lessor, which payments should have been discharged by the lessee or his successor; that this cause of action was one distinctly upon contract and could not be joined in a suit where the special relief authorized by the chapter dealing with the unlawful or forcible detention of real property is sought.
The summary proceeding provided for the obtaining of possession of real property is special and must be restricted in its use to the particular purposes expressed in the sections of the code embraced within chapter IV, title III, of the Code of Civil Procedure. The mode and measure of the plaintiff's recovery are therein limited. The law on this subject has been construed with strictness, for the relief authorized in some particulars is penal in its nature. The defendant is brought into court to answer within three days after issuance of summons (section 1167); amendments to the complaint are provided to be made without terms (section 1173); in the judgment the rents found to be due and damages may be trebled (section 1174). Other provisions designed to hasten the recovery of possession of the property as the main relief are included, which are all different from those affecting civil actions generally. A cross-complaint or counterclaim is not allowed. (Arnold v. Krigbaum,
Considering the first objection urged by the defendants named, in the light of what has been said, we find no difficulty at all in agreeing with appellant Peters, Jr., that he was not a proper party to the action; that as to him, by reason of the facts, a suit in unlawful detainer could not be maintained. The same objection, if considered tenable as a formal criticism of the complaint on the part of the Peters Investment Company, does not show that such defendant has suffered any prejudice by reason of the action of the court in overruling this objection. The Investment Company was the tenant in possession of the property, responsible for the payment of the charges under the lease agreement, and as to it the action could be maintained.
The second objection, that as to the combining of the cause of action for recovery of taxes paid by the lessor with the cause of action for rent and possession, is available to both appellants and should be sustained. The tax charges could not be recovered in an unlawful detainer suit. They could not be classed as damages, for damages could only arise after the retention of possession had become unlawful.
Respondent urges us to apply the provisions of section 4 1/2 of article VI of the constitution as a specific to cure these errors, and argues that no miscarriage of justice can be said to have accompanied the judgment. But, in our opinion, the cloak of the constitution in the particular provision referred *363 to cannot be made to cover the case. The forms of law provided in the establishment of the different character of actions are substantial, and a party is entitled to insist that he be compelled to answer and submit to judgment only when brought into court in an action properly framed in its particular class. A disregard of this right is more than a mere error "of pleading or procedure," such as is mentioned in the constitutional provision cited.
The findings of fact are quite full, and as to the defendant Peters Investment Company, the tenant holding unlawfully, a new trial will not be necessary, and obviously it will not be necessary to have a new trial in order to give appellant Peters, Jr., the relief to which he is entitled.
The judgment as entered against Peters Investment Company is modified by deducting therefrom the amount shown by the findings of fact to have been awarded on account of taxes paid by the plaintiff. As so modified, the judgment is affirmed, with costs to appellant.
The judgment as to appellant Homer H. Peters, Jr., is reversed and the trial court is directed to enter judgment in favor of said defendant-appellant in accordance with the views herein expressed.
Conrey, P. J., and Works, J., pro tem., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 26, 1918.