Whitaker v. McClung

| Minn. | Jan 15, 1869

By the Court

Beeey, J.

The only point made in support of the appeal taken from the judgment in this case is, that the judgment was entered up without notice to defendants or their attorneys, although the defendants appeared, and this point has been determined adversely to the appellant’s view in Piper vs. Johnson, 12 Minn., 60.

The other appeal is taken from an order denying a second trial, which trial was demanded under Sec. 5, Ch. 75, Gen. Stat. as amended by Sec. 2, Ch. 72, page 117, Laws 1867. The section referred to reads as follows: “ Any person against whom a judgment is recovered, in an action for the recovery of real property, may, within six months after written notice of such judgment, upon payment of all costs and damages recovered thereby, demand another trial by notice in writing to the adverse party, or his attorney in the action, and thereupon the action shall be re-tried, and may be brought to trial by either party.” "We are of opinion that the section quoted is not applicable to the case at bar.

This action is brought by the lessor of certain land in St. Paul against the assignee of his lessee, for the purpose of recovering possession of the leased premises, upon the ground of non-payment of rent. By the terms of the lease, the lessor upon a failure to pay rent had the right to reenter. Sec. 15, Ch. 75, Gen. Stat., provides that “When in case of a lease of real property, and the failure of the tenant to pay rent, the landlord has a subsisting right to re-enter for such failure, he may bring an action to recover possession of the property, and such action is equivalent to a demand of the rent and a re-entry upon the property; but if at any time before the expiration of six months after possession obtained by the plaintiff on recovery in the action, the lessee or his successor in interest, as to the whole or part of the property, pays to the plaintiff, or brings into court the amount of rent then in arrear, with interest and the costs of the action, and performs the other covenants on the part ot the lessee, he may be restored to the possession, and hold the property according to the terms of the original lease. ” We are of opinion that this section should control this case. While there may be some reason for difference of opinion as to the meaning of the language “ action for the recovery of reál property, ” in section 5, as amended, and as to whether it would if standing alone embrace an action brought by a lessor against his lessee to recover possession of leased property for non-payment of rent, the title being undisputed, and-undisptable we think that section 15 is a particular provision for the particular class of cases therein designated, a class to which seoUon 5 does not apply. If the general language of section 5 would comprehend a case of this kind, we think its meaning is restricted by section 15. The proceedings provided for in landlord and tenant acts are ordinarily summary, not only under our statute, (see Ch. 84, Gen. Stat.) but' in other jurisdictions. There are obvious reasons why they should be summary, and we perceive nothing to lead us to suppose that our legislature intended to depart from the policy which has been here as well as elsewhere sanctioned and adopted.

As to the other point made upon the payment of the costs with reference to a second trial. We do not think that the receiving of costs due to the plaintiff, by his attorney, or their payment to the clerk who gave the plaintiff’s attorney credit for them, even if they were paid for the avowed purpose of obtaining a second trial, could estop the plaintiff from resisting the application for such trial. The defendant paid only what he was bound to pay, and the plaintiff received only what he was entitled to receive, irrespective of the demand for a second trial. If the receiving of the money misled the defendant, it must be ascribed to his misapprehension of what we conceive to be the law.

The judgment and the order are affirmed,