24 N.W.2d 493 | Minn. | 1946
In support of their petition for the writ of prohibition, defendants assert that the relation of landlord and tenant in this case is not based upon a written lease wherein defendants are holding over after expiration thereof, and that plaintiffs did not serve upon defendants a notice to quit the premises or a notice terminating the tenancy from month to month, it being claimed that the notice of termination served by plaintiffs did not conform to the requirements of law, and that, by reason thereof, there has in fact been no termination of the lease by notice to quit. Defendants argue that because of the foregoing all proceedings on the part of plaintiffs are stayed pending the decision of this court on the appeal from the judgment in the unlawful detainer proceeding, and that therefore the issuance of the writ of restitution pending the appeal was in excess of the court's power.
1-2. Pertinent to the decision of this matter is §
"If the party against whom judgment for restitution is rendered or his attorney state to the justice that he intends to take an appeal, a writ of restitution shall not issue for 24 hours after judgment. In an action on a lease, against a tenant holding over after the expiration of the term thereof, or a termination thereof by a notice to quit, such writ may issue forthwith notwithstanding such notice of appeal, if the plaintiff give a bond conditioned to pay all costs and damages in case on the appeal the judgment of restitution be reversed and a new trial ordered."
There is no question here as to the jurisdiction of the court in unlawful detainer proceedings. The only question, then, is whether the lower court exceeded its legitimate power and authority in the issuance of the writ of restitution. As hereinbefore stated, the action of unlawful detainer was brought and tried upon the ground that there had been a termination of the lease by notice, and the trial court made a finding that there had thus been a termination of the lease. Under the circumstances, it is clear that when plaintiffs, after the appeal by defendants, gave a bond pursuant to §
Order to show cause discharged and writ denied. *356