Sigler v. Gondon

68 Iowa 441 | Iowa | 1886

Seevers, J.

The amount in controversy being less than $100, we are required to answer a question propounded by the circuit court in these words: “Where a lease has been made which provides for the payment of rent in six monthly installments payable on the first day of each month, from May, 1884, to October, 1884, inclusive, and the lessee fails to pay the installment becoming due on the first day of September, 1884, and thereupon, and during the said month of September, suit is commenced upon the said lease for rent, and asks a landlord’s attachment for rent due September 1st, and that to be due October 1st, and the petition sets out the execution. of the lease and its terms, possession thereunder by the lessee, and his failure to pay the September rent hereinbefore referred to, and asks judgment for the amount of the one next to become due, to-wit, the October installment, which latter was the last one to become due under said lease, and a landlord’s attachment is issued for rent due, as well as that to become due, and subsequently, and after the first clay of October, 1884, the plaintiff, bj7 way of supplemental petition, in accordance with section 2731 of the Code, sets up the fact that since the filing of the former pleading this last installment of rent has become due, and that no part thereof has ever been paid, and then prays judgment therefor,— is it error on the part of the court to strike the supplemental petition from the files ? ”

It will be observed that the action was brought on the lease, and judgment asked in the petition for the rent due and to become due. A landlord’s attachment was obtained for the rent not due. It is apparent that the defendant was advised by the petition that the plaintiff claimed that he was entitled to recover for rent not due, and of the grounds upon which a recovery was sought. It will be conceded that no such recovery could be had for the rent not yet due under the terms of the lease. Before the action was tried, all the rent under the lease had become due, and this fact was stated in the supplemental petition, and appropriate relief was asked. When the supplemental petition was filed, the plaintiff* was entitled to maintain an action for and recover the rent not due when the petition was filed. Under the circumstances above stated did the court err in striking the supplemental petition from the files?

It is provided by statute: “ Either party may be allowed, on motion, to make a supplemental petition, answer or reply, alleging facts material to the case which have happened, or have come to his knowledge, since the filing of the former pleading; nor shall such new pleadings be considered a waiver of former pleadings.” Code, § 2731. When the action was commenced, tlie plaintiff was not entitled to the full measure of the relief asked, and to obtain which was the object of the action. The plaintiff was entitled to the rent due and not due under the same lease, and the action was brought thereon. Subsequent to filing the petition, the right of the plaintiff to recover for all the rent reserved in the lease became perfect. By the lapse of time the measure of the relief to which he was entitled was enlarged, and we think the facts entitling him to such enlarged relief may be stated in a supplemental petition. While the facts are different, this case, ~We think, is identical in principle with Seevers v. Hamilton, 11 Iowa, 66, and City of Davenport v. Mitchell, 15 Id., 194.

The question asked must be answered in the affirmative, and-the judgment of the circuit court

Reversed.