Victor Realty Co. v. Argumanian , 172 Ala. 108 ( 1911 )

SAYRE, J.

The complaint filed by appellant with the inferior court of Birmingham, exercising the jurisdiction of justices of the peace, followed exactly the Code form for complaints in unlawful detainer. After the case had been removed into the city court of Birmingham by statutory certiorari, the complaint was amended by the addition of counts 2 and 3. These were counts in forcible entry and detainer. No point was reserved against the propriety of the amendment by specific objection taken at the time. Afterwards demurrer to count 2 was sustained. Count 3 was based upon the last clause of section 4262 of the Code, which declares a species of forcibly entry and detainer where one enters peaceably, and then, by unlawful refusal, or by force or threats, turns or keeps the plaintiff out of possession. There was, however, no allegation of force or threats. The allegation was that the defendant entered peaceably, and then, by unlawful refusal, turned or kept plaintiff out of possession. It was shown without any sort of conflict that the defendant had entered as a subtenant of a part of the premises under a contract with plaintiff’s tenant in chief, who occupied the premises under a contract of rental- renewed by holding over from month to month. Afterwards plaintiff’s tenant in chief moved out, leaving defendant in possession of the upper floor of the building, without any agreement between him and plaintiff. There are probably other sufficient reasons for an affirmance of the judgment of the city court in favor of the defendant. We base our judgment upon these considerations:

Plaintiff could not recover on the forcible entry count, because the defendant had not intruded, peacear bly or otherwise, upon any prior actual possession. He had gone into possession under and by virtue of a contract with his landlord, then in possession as plaintiff’s tenant in chief. Plaintiff’s remedy in the case here shown, if any he had at the time, was by an unlawful detainer. — Self v. Comer, 166 Ala. 68, 52 South. 336; Farley v. Bay Shell Road Co., 125 Ala. 184, 27 South. 770; Knowles v. Ogletree, 96 Ala. 555, 12 South. 397. Plaintiff could not recover on the unlawful detainer count for lack of the 10 days’ demand in writing which has been required since the act of December 7, 1900 (Acts 1900-01, p. 40; Code, § 4263).

The facts determinative of this case were proved without conflict. Assignments of error looking to particular interlocutory rulings need not be considered.

Affirmed.

Dowdell, C. J., and Anderson and S'omerville, JJ., concur.