118 F. 430 | 8th Cir. | 1902
This case comes on a writ of error from the United States court of appeals in the Indian Territory (64 S. W. 567), which court affirmed the judgment of the United States court for the Southern district of the Indian Territory; the latter judgment being in favor of Theo. Fitzpatrick, the present defendant in error, who was the plaintiff in that court. The case was treated at nisi prius and by the court of appeals in the Indian Territory as an action of unlawful detainer, and was tried as such, without objection, before a jury, which returned a verdict in favor of the plaintiff. No exceptions were taken to the admission or exclusion of evidence, nor were any instructions asked by either party, save a general instruction at the conclusion of the evid'ence to find for the defendant. This instruction seems to have been asked by the defendant below for no other purpose than to raise questions which had already been raised by a demurrer to the complaint, so that the substantial question to be decided is whether the complaint, on its face, stated a cause of action. The complaint to which the demurrer was addressed contained, in substance, the following allegations: That Fitzpatrick was in the peaceable possession of a lot of ground in the village of Chickasha, in the Indian Territory, in the year 1897; that during that year, by a verbal agreement, he leased the lot in question to J. P. Ellis “for the term of one month, and from month to month thereafter until terminated at the option of either party, or by the failure of the lessee to pay rent therefor according to the terms of the lease, at a monthly rental of five dollars per month, payable in advance”; that the defendant, Ellis, went into possession of the premises under said lease, and that he and those under him paid rent to the plaintiff; that they had refused, notwithstanding frequent demands for the rent were made, to pay the same after April 1, 1898, this suit having been brought in February, 1899; that the plaintiff had made a written demand for the possession of the property prior to bringing the suit, and that, notwithstanding such demand, the defendant had refused to surrender possession of the premises; and that rent at the rate of $5 per month was due from April 1, 1898, the rental value of the premises being that amount.
It was alleged by the defendant, as the principal ground of the demurrer, that the complaint was defective, in that it nowhere alleged that the plaintiff, at the time of or prior to the institution of the suit, had made any improvements on the demised premises that were of a permanent and substantial character. It is claimed that the complaint stated no cause of action, because it failed to contain such an allegation. With reference to this contention on the part of the defendant, the court of appeals in the Indian Territory said, in sub-
Another point which is urged in support of the demurrer is that the only ground alleged for bringing an action of unlawful detainer was the nonpayment of rent, and it is said that this fact did not constitute a sufficient foundation for the action. Relative to this proposition, it is sufficient to- say that the complaint showed that the lease, by its terms, was terminated by the nonpayment of rent, and that the action was well brought because it appeared that the tenant had held over after the natural termination of the lease, and had refused to surrender possession after demand made therefor in writing.
The third and final objection to the complaint is that it seeks to recover rents which accrued before the filing of the complaint, but this is a matter which does not touch the sufficiency of the complaint, in that it only goes to the measure of recovery.
We are of opinion that the complaint stated a good cause of action for unlawful detainer, and as this is the only question which is before this court for review, and as it was correctly decided by both of the lower courts, the judgment of each court is hereby affirmed.