Dennis v. Coble

18 Ohio App. 62 | Ohio Ct. App. | 1923

Richards, J.

The original action out of which this proceeding' in error grows was commenced by Coble and McFann in the municipal court of the city of Toledo to recover certain- real property alleged. to be forcibly detained by the defendant. The trial resulted in a verdict and judgment in favor of the plaintiffs, finding that the defendant was guilty of wrongfully detaining the property. This judgment was affirmed by the Court of Common Pleas, and it is now urged that the judgments are contrary to law and should be reversed.

The controversy between these parties must be determined by a solution of two questions: first, on what date did the lease- to Dennis expire; and, second, was the notice which was served on him to quit the premises a lawful one?

The original lease was by its terms to begin on the first day of July, 1920, and while there were some negotiations between the parties and some correspondence which might be construed to imply that the lease was to terminate on July 1, 1922, we have no doubt that these matters are all referable to the original lease and that the tenancy would expire at midnight on June 30, 1922.

It is not disputed that under the decisions of Leutzey v. Herschelrode, 20 Ohio St., 334, and Mone v. Pope, 9 C. C., 168, the statutory notice to leave the premises in a, forcible detainer case may be served as well before as after the expiration of the term; nor that the day designated for vacating the premises must be at or after the expiration of the. term. The notice to quit was served on Dennis June 27, 1922, and contained the usual recital that his compliance with the notice within three days after its service would prevent any measures being taken to obtain possession. The action in forcible detainer was not, in fact, brought until July 10, 1922, but it is insisted that the notice is not a compliance with the law, because plaintiff in error claims that it required the tenant to vacate the premises on June 29, 1922, while his lease would not expire until June 30. The method of computing time adopted by the plaintiff in error to reach the conclusion at which he arrives is by counting the day of the service of the notice as one day, by which computation the time within which the tenant was required to vacate would expire on the 29th day of June, 1922. The court, however, is of the opinion that the day on which the notice to vacate was served must not be counted in computing the time at which the tenant is required to vacate. The matter is controlled by Section 10216, General Code, Avhich provides that the time Avithin which an act is required by law to be done shall be computed by excluding the first day and ineluding the last. Under the provisions of this statute, June 27 could not be counted as one of the days, but the first day would be June 28, and therefore the tenant was not required by the notice to vacate until June 30, which Avas the day that his right to occupy the premises would expire, and the notice was therefore in accordance with law.

The proper method of making the computation in cases falling within the statute is set forth in Bushong v. Graham, 4 C. C., 138. That case was based on Section 5227 of the Revised Statutes, now Section 12226, General Code, which requires a party who desires to appeal his cause to do so “within thirty days,” and it was held that where the time from which the judgment dated was the first day of the month the appellant was entitled to all of the 31st in which to perfect the appeal.

It is urged that Mone v. Pope, supra, is favorable to the contentions of plaintiff in error in this case. We do not so interpret that decision, as it only holds that the time- fixed for the vacation of the premises must be at or after the expiration of the term, and the only two oases cited by the judge in the opinion are- oases of that character. Evidently in that case the lease did not expire until the 31st of March, or the 1st of April, whereas the notice to quit required the tenant to vacate Avithin three days from March 12.

The court is of the opinion that where a lease expires on June 30, a lawful notice to quit may be served on the tenant on June 27, requiring him to vacate within three days from the time of its service. The tenant under such notice would have all of the 30th day of June in which to vacate, and that being the day on which his lease terminates it is the day when he is required by its terms to vacate. The notice in the case at bar, therefore, was within the provisions of the law.

Judgment affirmed.

Chittenden and Kinkade, JJ., concur.