76 So. 2d 838 | Miss. | 1955
This is a suit to remove a tenant for non-payment of rent. Appellee, Mrs. H. H. Shivers, is the owner of the Rebel Cafe and Tourist Courts, situated on Highway 49 of Rankin County. For several months prior to November 10, 1953, appellant James H. Williams rented the cafe and courts from appellee for a monthly rental of $125. Although there is some ambiguity as to whether it was an oral lease for six months or on a month to month basis, the great weight of the evidence shows, and the iury apparently so found, that appellant was leasing from Mrs. Shivers on a month to month basis. A rental payment of $65 (at this time appellant was paying rent each two weeks) became due and payable on November 10, 1953. Appellant did not pay it.
On November 17, appellee served upon appellant the following notice: “Pursuant to statute of this State this is to officially notify you in writing to vacate the premises described as Rebel Cafe & Courts, owned by the undersigned, and to depart said premises, leaving
From that judgment, Williams appealed to the Circuit Court of Rankin County. There was a trial before a jury, at which appellee’s husband testified. Appellant offered no testimony on the merits. The jury rendered a verdict for appellee, plaintiff, and the judgment of the circuit court ordered appellant to vacate the premises, and, as authorized by Code Section 1197, gave appellee a judgment also for $250, “as rent from November 10, 1953 to January 10, 1954,” against appellant and his bondsmen on his supersedeas appeal bond from the justice of the peace court’s judgment. Williams then appealed to this court with supersedeas.
The notice to vacate is not in literal compliance with Code of 1942, Section 948 (2), since it fails to require in the alternative the payment of rent or the possession of the premises. Wilson v. Wood, 84 Miss. 728, 36 So. 609 (1904). However, a tenancy may be terminated by agreement between a landlord and tenant without written notice. Stacks v. Robson, 139 Miss. 600, 104 So. 354 (1925). It is undisputed that this oc
Appellant cannot complain of his own omission on appeal to the circuit court in failing to have filed with that court a certified transcript of the record in the justice of the peace court. And although the instruction appellant complains of is not entirely satisfactory, we think that it was sufficient to submit the principal issue to the jury. Moreover, appellant asked for no instructions for himself.
Code Section 958 makes appeals in cases of this type similar to those in eases of unlawful entry and detainer. That pertinent statute, Code Section 1197, provides that on the trial de novo in the circuit court the plaintiff may claim for all arrears of rent due at the time of such trial. Hence the judgment of the circuit court correctly allowed appellee rent up to that time in the amount of $250. From that judgment appellant appealed to this Court with a supersedeas bond of $1,500, conditioned on his paying and satisfying such judgment as this Court may render. Appellee asks that we render a money judgment for the rent in default up to the time of the judgment of this Court. Appellant makes no response to that request in appellee’s brief. Since appellant appealed with supersedeas, he apparently is still in possession of the property, and it would be inequitable to permit him to have enjoyed such possession without paying appellee rent therefor. Under the authority
Affirmed and remanded.