47 A.2d 562 | D.C. | 1946
Plaintiffs, as landlords, sued defendant, as tenant, for possession of housing accommodations under the District of Columbia Emergency Rent Act
No further action was taken until November 20, when counsel for plaintiffs, desiring to order a writ of restitution, examined the docket and discovered the clerk’s omission. Prompted by plaintiffs’ counsel, the clerk recalled to mind the action of the trial judge and entered the judgment as of the date of the court’s order of judgment. No notice of the clerk’s action was given to defendant or her counsel. Based upon this entry, another clerk made the same entry in the court’s docket in the clerk’s office. The writ of restitution was then issued.
On November 26, 1945, counsel for defendant filed three motions: (1) to vacate the writ of restitution, (2) to stay the writ of restitution, and (3) to set aside the stipulation. The following day the judge then sitting in the Landlord and Tenant Branch overruled the motions, and, on December 5, this appeal followed. A supersedeas bond has effectively stayed execution during the pendency of this appeal. The tenant has, therefore, enjoyed a stay of more than six months.
In support of the motion to vacate the writ, the tenant urged that the judgment as
Tenant’s counsel concedes knowing of the lack of entry some time prior to the discovery of such fact by counsel for the landlords, and obviously knew of the entry ’by the clerk not later than November 26, when these motions were filed. Yet no appeal from the judgment itself has ever been taken, and the time for such appeal has long since expired.
The contention that the judgment as entered by the clerk was void can not be sustained. Prior to the adoption of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, federal courts considered entry of a judgment as a mere ministerial duty, the lack of which did not affect the validity of the judgment for most purposes.
Tenant relies upon Rule 58 of the Federal Rules of Civil Procedure, providing in part that a judgment is not effective before proper entry. This rule does not apply to the Municipal Court, since it has not been adopted by that Court.
Although, as urged by tenant’s counsel, Rule 66(e) of the Municipal Court provides for notice “immediately upon the entry of an order or judgment signed or decided out of the presence of parties or their counsel,” this judgment was pronounced in the presence of the parties and their counsel, and hence the rule does not apply. It would have been better practice, under the circumstances, if notice of this entry had been given, but we are not justified in holding the judgment void because of the lack of notice. It results there was no ground for quashing the writ. This conclusion makes it unnecessary to discuss the question of our jurisdiction to entertain the appeal from the trial court’s refusal to quash the writ.
Tenant also urges that the motion for leave to withdraw the stipulation should have been granted because of alleged newly discovered evidence that the landlords are legally incapable of owning real estate in the District of Columbia because they are aliens. This claim is without merit. The record contains an affidavit that the male plaintiff has declared his intention to become a citizen. The Code provides that such a person is entitled to own real estate.
There remains to be considered the denial of the motion to stay the writ of restitution. The record shows that the trial judge refused the stay because he “found that under the Constitution he had no power to grant a stay as substantial property rights were involved.” However, the sole reason advanced for the stay was the “undue hardship” an eviction would cause the tenant because she had been ill for several years. The court’s ruling, therefore, was not an abstract one and must be considered against the background of the reason urged for the stay.
It is a well-recognized principle that courts, under the general supervisory powers over their process, have the discretionary power to temporarily stay execution of their own judgments whenever it is deemed necessary to accomplish the ends of justice.
In some jurisdictions general statutes have been enacted providing for stays of execution under certain conditions.
We feel it appropriate to add, however, that the lack of this power does not necessarily mean that in the District of Columbia immediate eviction must inevitably follow every judgment for possession in landlord and tenant cases. In a supplemental brief the tenant here presents statistics showing that from July! 1, 1942, through September 1945, approximately 129,000 landlord and tenant cases were filed in the Landlord and Tenant Branch,
The shortage of residential accommodations, including rooms, apartments, and houses, was acute in the District of Columbia all during the recent war, and, though hostilities have ceased, the shortage apparently is now worse than ever. Such a difficult situation can not always be met by the application of the strict letter of the law. Even when cases involving housing accommodations have reached the stage of court contests, there remains an opportunity for equitable settlements through the co-operation of the court and landlords and tenants. Rule 9(c) of the Landlord and Tenant Branch contemplates that the court “shall make an earnest effort” to settle controversies in that Branch by conciliation. There are few landlords, experience shows, who will not respond to such efforts when made in the proper spirit. The records of the Landlord and Tenant Court give eloquent evidence that in thousands of cases landlords have consented to reasonable and even generous extensions of time. This co-operative attitude has grown out of the necessities of the times. The owner has a right, even under the Emergency Rent Act, to gain possession of his property for personal occupancy; but this right, most landlords realize, should be tempered by a due regard for the right of the tenant to shelter.
Affirmed.
Code 1940, §§ 45 — 1601, 45 — 1605.
In re Ackermann, 6 Cir., 82 F.2d 971. See also Prichard v. Nelson, 4 Cir., 137 F.2d 312; Zielinski v. United States, 2 Cir., 120 F.2d 792; United States v. Rayburn, 8 Cir., 91 F.2d 162; Zadig v. Ætna Ins. Co., 2 Cir., 42 F.2d 142; People ex rel. Holbrook v. Petit, 206 Ill. 628, 107 N.E. 830; Doughty v. Meek, 105 Iowa 16, 74 N.W. 744, 67 Am.St.Rep. 282.
Western Union Tel. Co. v. Dismang, 10 Cir., 106 F.2d 362 (decided since the Federal Rules of Civil Procedure became effective).
Continental Oil Co. v. Mulich, 10 Cir., 70 F.2d 521. See also Van Ingen v. Berger, 82 Ohio St. 255, 92 N.E. 433, 19 Ann.Cas. 799.
Plummer v. Johnson, D.C.Mun.App., 35 A.2d 647; Werth v. Nolan, D.C.Mun. App., 32 A.2d 386, reversed on other grounds 79 U.S.App.D.C. 33, 142 F.2d 9. See also United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290.
Code 1940, § 45 — 1502 et seq.
United States v. McLemore, 4 How. 286, 11 L.Ed. 977; Petrified Bone Mining Co. v. Rogers, C.C.E.D. Pa., 159 F. 1019; Eaton v. Cleveland, St. L. & K. C. R. Co., C.C.E.D. Mo., 41 F. 421; Lineker v. Dillon, D.C.N.D. Cal., 275 F. 460; 33 C.J.S., Executions, § 139; 21 Am.Jur., Execution, § 600.
Potomac Small Loan Co. v. Myles, D.C.Mun.App., 34 A.2d 609; Franklin v. Chas. C. Schulman Co., D.C.Mun.App., 31 A.2d 871; Hubbard v. Hubbard, 77 Vt. 73, 58 A. 969, 67 L.R.A. 969, 107 Am. St.Rep. 749, 2 Ann.Cas. 315.
City of Coral Gables v. Hepkins, 107 Fla. 778, 144 So. 385.
10 R.C.L., p. 1247 et seq.
Code 1940, § 11 — 811.
Code 1940, § 40-^03.
Code 1940, § 11 — 748.
Most of these suits were for nonpayment of rent.