90 Neb. 587 | Neb. | 1912
This action, of forcible entry and detention, was instituted in justice court and appealed to the district court, where it was tried to the court and a jury. When both sides had rested, each moved for a directed verdict. The motion of defendant was overruled and that of plaintiffs sustained. The judgment was entered for plaintiffs, and defendant appeals.
Defendant now urges that the court erred in taking the case from the jury. The rule that, where such action of the court below is invited by all of the parties, neither can predicate error thereon, is now too well settled in this court to longer require citation of authorities or reference to the rule in the syllabus.
The petition alleges the ownership of the property in controversy; that defendant had been a tenant from month to month; that on February 1, 1910, plaintiffs notified defendant in writing that his tenancy would end on March 1, 1910; that on March 1 they gave defendant a further notice in writing to quit and deliver up possession of the premises within three days of that date, and that defendant still forcibly and unlawfully retains possession. The answer denies every allegation not specifically admitted, admits the ownership of the building and the service of notice to vacate within three days, and alleges that defendant was holding the property in controversy under a lease expiring August 1, 1918, a copy of which is set out, but which need not be set out here. The answer contains some other allegations which we do not deem it necessary to refer to. The reply is a general denial, with a special denial that the defendant was holding under any written contract or that “he is anything other than a tenant of said property by sufferance.”
It appears from the abstracts that defendant had been a tenant of the premises for many years. Mr. Dorrington, one of the plaintiffs, and the one who seems to have had the chief control of the property, testified that he re
Ther above extracts from the testimony of these witnesses show that there was a square conflict in the testimony upon the point as to whether defendant was ever, Avith the knowledge of the plaintiffs, in possession of the premises under the lease, or that the instalments of rent, which he subsequently paid, were paid by him under the supposition that they were being paid under the lease. If the evidence clearly showed that he was in possession under the lease, then the payment of rent by him and the acceptance thereof by plaintiffs would have bound both parties, even though defendant had never signed it, for the one year provided in the lease; and in like manner a payment of rent by defendant and acceptance of the same by plaintiffs without objection, after the'expiration of the one year, would have made the lease good for the full period of five years. In such case the contention
It is further objected by defendant that neither the justice court, the district court, nor this court has jurisdiction, for the reason that the notice served on March 1 to vacate within three days w.as insufficient, the suit having been commenced on March 4. Ordinarily this point would be good; but in the present case we think defendant lias waived the right to insist upon this assignment. Upon the trial in the district court, when plaintiff offered the notice (exhibit 2) in evidence, defendant made this objection: “We admit that about March 1st, 1910, exhibit 2 was served upon the defendant, but object to its introduction because it is not a notice provided by law and that he should have been served with a six months’ notice.” This objection was properly overruled. It did not challenge the sufficiency of the notice upon the ground now urged. Defendant had been insisting all the time that he was in possession under a lease that would not expire until 1913, and that in any event he was a tenant from year to year, and as such was entitled to a six months’ notice, and the objection above noted was in line with that contention.
Finding no reversible error in the record, the judgment of the district court is
Affirmed.