112 N.W. 245 | N.D. | 1907
This action is between the same parties and concerns the same property as the -case -of McLain v. Nurnberg (just decided), 112 N. W. 243. Like that action, this is brought for the possession of certain real property and for rent under the forcible detainer statute of this state. In the former action the possession of the lot was demanded, together with judgment for the
Many of the errors assigned on this appeal were disposed of on the appeal in the former action, involving similar, if not identical, issues, and need not be referred to on this appeal.
The principal contention on this appeal pertains to an alleged error that did not arise on the former appeal. The answer, so far as it alleged a former action pending, was as follows: “That as a further defense to the action of the plaintiff the defendant shows to the court: That on the 11th day of April, 1903, an action at law was commenced before Peter Pearson, a justice of the peace in and for Stutsman county, North Dakota, by the plaintiff in this action, to recover possession of the rooms occupied by this defendant in the building situated on lot 4, block 18, city of Jamestown, North Dakota, being the same and identical rooms and premises as described in the complaint in this case, and for recovery of possession of which this action is brought; that upon the trial of said cause a finding was made and a final judgment rendered by said justice of the peace, Peter Pearson; that from the finding made and judgment rendered,
It is contended that the answer does not state facts sufficient as a plea of a former action pending, for the alleged reason that its allegations are mostly matters of conclusion. No demurrer was interposed thereto, nor was any objection made to the introduction of evidence in support of it. The objection to it is first raised in this court by way of argument. If the answer be deficient technically under strict rules of pleading, we think that the objections should not now be noticed. The trial proceeded to judgment without objection to the answer; hence we deem that the defective allegations thereof were waived and cannot now be taken advantage of. The objections to it are technical, and could easily have been amended if attention had been called to them on the trial. The question is therefore squarely presented by the amended abstract whether the former action was a bar to this one. As before stated, the only distinguishing fact between them is that rent for a different and later period was sued for in this action. Otherwise the issues are in all respects identical. -It is elementary that, unless the issues are identical in the two actions, an answer pleading the pendency of the former action must fail. If, however, the issues are the same, the answer setting forth the pendency of the former action will be sustained, as litigants are not to be harassed by a multiplicity of suits, or even two suits involving the same issues.
The principal issue in the first case was the right to the possession of the premises. The jury found on the trial that the defendant was not entitled to the possession. There was an appeal from the judgment on that verdict. A stay of execution was procured by the giving of an undertaking, conditioned in the precise language of
It is claimed that the plaintiff could not recover for rent for any period after the commencement of the action. We do not think the contention tenable. It is certain that section 6774, supra, under which the bond was given, secures the recovery for all rents up to the disposition of the appeal. Besides that section, a recovery for rents to the day of verdict or judgment is recoverable under section 4973, Rev. Codes 1899, which reads as follows: “Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof or certain to result in the future.” Under this section, the rent asked for in the second suit could have been recovered in the first. In Hicks v. Herring, 17 Cal. 566, the court said: “It was different with the rents and profits. The monthly value of these was known at the institution of proceedings. For them a claim was made, and the loss of them was a necessary consequence of the deprivation of the possession, and of necessity continued until restitution. The plaintiff could therefore properly recover for them up to the time of the verdict, for the rule is that the proof of damages may extend to all matters up to that period which are the natural result of the previous injury.” 2 Greenleaf Ev. section 268. The injury in this case is the unlawful holding of possession after the termination of the lease. It is also held in California that the recovery of damages for continued trespass or waste may be recovered up to the rendition of verdict without amendment of the complaint or supplemental pleading. Hicks v. Drew, 117 Cal. 305, 49 Pac. 189; McLennan v. Ohmer, 75 Cal. 558, 17 Pac. 687;
Some minor points of practice are raised by the respondent, which will be véry briefly considered. Objection is now made in argument, and not by motion, that the certificate of the district judge, pursuant to rule 9, Sup. Ct. Rules (74 N. W. vi.), does not enumerate all the papers making up the judgment roll. If the point -has any merit, it cannot be raised except by motion duly made prior to submission of the argument on the merits of the appeal.
This action was tried in the district court pursuant to a stipulation in open court that the record of the prior trial should be considered as the record on the trial of this case so far as applicable. The objection is now made by argument only that the stipulation is so indefinite that it cannot be determined what papers are to be considered on this appeal. A statement of the case was settled by the trial judge, and any irregularities or loose practice of a prejudicial nature should have been corrected and made definite by proper action at the settlement of the statement or by motion in this court. Any such irregularities cannot be taken advantage of now, as they have been waived.
The complaint was amended in the district court, and also in the justice court. No answers were made to these amended complaints. It was not necessary, as the answers on file were applicable to the facts stated in the amended complaints, and were so considered on the trials.
For the error in not giving effect to the answer setting forth the pendency of a former action, the judgment is reversed, and the cause remanded for further proceedings.
