80 P. 419 | Or. | 1905
Lead Opinion
Decided 10 April, 1905.
ON Motion to Dismiss Appeal.
delivered the opinion of the court.
This is a motion to dismiss an appeal. An action of forcible entry and detainer was commenced in a justice’s court of Marion County, to recover the possession of about 80 acres of land, and, the cause being at issue, was tried, resulting in a judgment for plaintiff as demanded in the complaint; and defendants appealed to the circuit court for that county, giving an undertaking therefor, and also an undertaking for the payment to plaintiff of twice the rental value of the premises from the rendition of the judgment until final determination of the action, if such judgment should be affirmed on appeal. The appeal was tried in the court to which the cause was taken, and a judgment for the restitution of the premises was rendered against the defendants, who on January 10,1905, served and filed a notice of appeal, and gave and filed an undertaking therefor, and 18 days thereafter, without notice to plaintiff, secured an order of that court, but of a different department, fixing the amount of a stay bond, which they also gave, conditioned that they would not commit or suffer any waste, and if the judgment, or any part thereof, should be affirmed, they would pay the value of the use of the premises from the time of taking the appeal until the redelivery of the possession of the land, not exceeding the sum of $250. The bill of exceptions having been settled, certified and sent up’, the motion referred to was interposed on the grounds that this court did not have jurisdiction of the cause, for that no undertaking for the payment of the rent of the premises was given within the time prescribed, and that no right of appeal exists from judgments rendered in actions of this kind.
*158 “If judgment be rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from such judgment until he shall, in addition to the undertaking now required by law upon appeal, give an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff of twice the rental value of the real property of which restitution shall be adjudged from the rendition of such judgment until final judgment in said action, if such judgment shall be affirmed upon appeal”: B. & C. Comp. § 5754.
An examination of the section of the statute quoted will show that the undertaking required to be given for the payment of the rent stipulates that the term for which the stay bond shall operate as indemnity for the use of the demanded premises is from the rendition of the judgment in the justice’s court until final judgment is given in the action, if such judgment is affirmed. The term “final judgment” is generally used as a synonym for an appealable order, that is, one which not only affects a substantial right, but one which, in effect, determines the action in the court pronouncing the judgment: B. & C. Comp. § 547; State v. Brown, 5 Or. 119; Basche v. Pringle, 21 Or. 24 (26 Pac. 863). The term “final judgment,” as used in the statute under consideration, cannot apply to the determination of the cause in .the justice’s court, for the language assumes that such judgment has been given therein, and provides that, on an affirmance thereof, the payment to the plaintiff of .twice the rental value of the land of which restitution has been awarded shall be guaranteed by the terms of the supplementary undertaking. A fair interpretation of the phrase “until after final judgment in said action” means that the undertaking stipulating for the payment of the rent shall afford compensation to the plaintiff for the use of the premises from the time judg
The object of the statute requiring the giving of a stay bond was evidently not designed to impose needless burdens upon the defendant when he appeals from a judgment rendered against him in a justice’s court for the restitution of land of which he is in possession, but to secure to the plaintiff in such action the payment of the rent until the right to the possession becomes final, and, as the statute in effect so provides, no necessity existed for the giving of an undertaking to stay the enforcement of the judgment rendered in the circuit court, the undertaking given therefor in the justice’s court as a condition precedent to the right of appeal being sufficient for that purpose.
It is difficult to discover how any unfairness can arise from reviewing a judgment given in a justice’s court in an action of forcible entry and detainer, except the possibility of a reversal, which would reasonably show that such judgment was erroneous, and therefore unjust. The rule to be extracted from the cases decided by this court, to which attention has been called, is that an appeal from a judgment given in a justice’s court in an action of this kind may be instituted and prosecuted to final determination by either party; but, if taken by the defendant, he must, in addition to the undertaking therefor, also give an undertaking for the payment to the plaintiff of twice the rental value of the premises of which restitution has been awarded.
As the right to an appeal in such cases is fairly to be inferred from the statute, and as the cause of justice would, in our opinion, be promoted by continuing the practice so long observed, the motion to dismiss the appeal is denied.
Motion Overruled.
Opinion on the Merits
Decided 28 August, 1805.
On the Merits.
delivered the opinion.
On the 1st of October, 1903, the plaintiff leased to defendants certain premises for the period of one year. The lease contained, among others, the following conditions, namely:
*162 “And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to reenter said premises and to remove all persons therefrom; the party of the second part hereby waiving any notice to quit or of intention to reenter under the statute. And the said party of the second party covenants * * that at the expiration of the said term or other determination of this lease the party of the second part will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit.”
The defendants refusing to surrender at the end of their term, the plaintiff instituted this action of forcible entry and detainer. At the trial there was no proof of the giving of any notice to quit on the part of the plaintiff, and the defendants moved for a nonsuit, which being denied, plaintiff had judgment; hence this appeal.
It will be helpful to us if we take a retrospect of the law of tenancies as it pertains to the necessity of demand and notice for their termination. At common law a tenancy at sufferance was created when a person came into possession of land lawfully and held over wrongfully after his estate had ended. • The tenancy was of a most shadowy character, and the landlord could reenter and bring ejectment for possession without the necessity of prior demand or notice to quit: 18 Am. & Eng. Enc. Law (2 ed.), 177, 180. A tenancy at will was more stable, and arose where lands or tenements were let to hold at the will of either party to the letting, by force of which the lessee was in possession. It was not essential that the contract should be expréss, but sufficient that it was.implied, and therefore an estate by sufferance might be converted into a tenancy by will, if the holding was of sufficient duration as that the assent of the landlord to the holding, which, was at first wrongful, might be presumed. Thus a tenant
“1. When the tenant or person in possession of any premises shall fail or refuse to pay any rent due on the lease or agreement under which he holds, or deliver up the possession of said premises for ten days after demand made in writing for such possession.
2. When, after a notice to quit as provided in this chapter, any person shall continue in the possession of any premises at the expiration of the time limited in the lease or agreement under which such person holds, or contrary to any condition or covenant thereof, or without any written lease or agreement therefor”: B. & C. Comp. § 5755.
The notice specified in the latter subdivision must be in writing and served upon the tenant for a period of 10 days before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case the service must be for 90 days: B. & C. Comp. §§ 5756, 5757. It is manifestly the purpose of these statutes to change the time of notice requisite to entitle the landlord to reenter, as it relates to the several kinds of tenancies known to the common law, and in addition thereto to provide appropriate remedies for reentry in these and other cases. It is difficult in practice to determine the true intendment-and legal effect of section 5755. Indeed, Chief Justice Thayer has said, and not inappropriately, that “the forcible entry and detainer act adopted in 1866 seems to have been thrust into the statute without regard to its harmony or fitness with the other provisions”: Rosenblat v. Perkins, 18 Or. 156, 160 (22 Pac. 598, 6 L. R. A. 257). The act of 1866 (see Laws 1866, p. 33,) is revisory of the forcible entry and detainer act as it existed in territorial days, although it was preceded in 1864 by another act intended for the same purpose: Gen. Laws 1845-64, p. 743. Under the territorial law a person was authorized to recover the possession of the premises when
The real question involved here is whether the notice referred to in the second subdivision is intended as a notice for terminating the tenancy, or as a necessary step in the procedure for reentry by forcible entry and detainer action. If the former, it is susceptible of waiver by the tenant, as such a notice was so at common law ; but, if the 'latter, it is a matter with which the parties can have nothing to do, and the landlord must give the notice before he can maintain his action. The relief by forcible entry and detainer is unquestionably designed as a summary proceeding to give speedy and prompt relief, and the action is essentially civil in character although the form of the verdict of the jury would seem to indicate otherwise. A service of summons is required for a period of not less than two nor more than four days before the day appointed
Turning again to the statute, there is an apparent recognition of the common-law idea that a person might, by holding over a stated term,'■become a tenant from year to year or month to month, as the case may be, by the implied assent of the landlord, and the most natural deduction is that the legislature intended by the notice provided for to forestall the implied assent and thereby terminate the lease absolutely, and when so terminated there would be a wrongful holding by the tenant, because he could not then presume upon the assent of the landlord to his further holding. If the landlord desires a termination absolutely at the date of the expiration of the lease, he might accomplish it by giving the requisite notice preceding that date, of he might terminate it subsequently thereto by the proper notice, providing his preceding acts could not be construed into a letting for the succeeding period. But, if he desired to terminate the lease because of a breach of a condition or covenant, then the notice must follow the breach, of course ; for how could the landlord foretell with certainty that there would be-a breach, so as to conform his notice to the fact? Now, in harmony with the law as
The idea that the notice provided for was intended as a part of the procedure essential to give the court jurisdiction is inconsistent with the cardinal purpose of the act, namely, that of affording the landlord a summary remedy. It is far from summary to say that the landlord shall make a demand of 10 days, or give a notice of 10 or
Affirmed.