Kuhn v. Kuhn

Jun 18, 1886
Reporters:
,
Before:
Seeveks
Seeveks, J.

I. Several errors are assigned and discussed by counsel, but, as we understand the record, there are but i. pleading: Issues not ’ changed: no prejudice. two legal propositions therein which require notice. The first is that the superior court per- . , 7 n . mxttecl the plaintifc to amend the petition filed before ‍​​​‌‌​‌‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌​‌‌​​​​‌‌​‍the justice by the insertion of the following words immediately after the figure and letters “5th P. M.;” “Or near there, and lying in the direct vicinity, and the only house built by defendant on said plaintiff’s land.” To this action of the court the defendant objected, and moved to strike the amended pleading from the files. The objection was overruled, and this ruling of the court is assigned as error. The only effect of the amendment was to describe the premises, the possession of which the plaintiff sought to obtain, with more particularity than had been done in the petition. The issue ‍​​​‌‌​‌‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌​‌‌​​​​‌‌​‍remained precisely the same, and this fact clearly distinguishes this case from Dicks v. Hatch, 10 Iowa, 380, and Hollen v. Davis, 59 Id., 444. The necessity for the amendment, in the absence of a motion for a more specific statement, is not clearly apparent, and we think the defendant was in no respect prejudiced thereby, for the reason that the plaintiff would have been entitled to the relief asked and obtained under the allegations of the original petition.

*684II. The court instructed the jury that the defendant was entitled to thirty days’ notice to quit before the action was 2 landlord notice to quit: time-commenced, and that if ‍​​​‌‌​‌‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌​‌‌​​​​‌‌​‍the jury found that defendant was in the occupancy of a house sit-nated on the land, a notice to quit the house was a notice to quit the land. If the jury found that the terms of the oral lease had been violated by the defendant, then he was a tenant holding over after the expiration of the lease, or, possibly, he was a tenant at will, which is the. view most favorable to the defendant; but in neither case was he entitled to more than thirty days’ notice to quit. The instructions in this respect are clearly correct.

Counsel claim that the house ‍​​​‌‌​‌‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌​‌‌​​​​‌‌​‍was a chattel, and the defendant had a right to remove it, and therefore the court „ . notice where house is a chattel. erred. “We are not sure that we understand the point intended to be made in this respect. But the court instructed the jury that the ownership of the house was not involved in the action, and it is not claimed that this instruction is erroneous. For aught we can see, the defendant has the right, and that all the plaintift claims is that the defendant remove both himself and house from the premises. It is claimed that the fifth instruction is ‍​​​‌‌​‌‌‌‌​​​‌‌​​​​‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌​‌​​​‌​‌‌‌​‌‌​‌​​‌‌‌​‌‌​​​​‌‌​‍erroneous. In this we do not concur, for the reason that the construction of the instruction adopted by the defendant, in our opinion, is clearly incorrect.

Other errors are discussed by counsel, but we think the foregoing is a sufficient indication that they are not well taken.

The judgment of the superior court is

Affiemed.