Miller v. Sparks , 4 Colo. 303 ( 1878 )

Elbert, J.

A lessor before he exercises the right of reentry reserved for breach of covenant to pay rent, must make an actual demand of the amount of rent due, in strict compliance with the requirements of the common law.

Whenever a forfeiture for the non-payment of rent is to be established, it is necessary to prove such a demand. Taylor’s Landlord and Tenant, §§ 297, 298; Chadwick v. Parker, 44 Ill. 326; Smith v. Whitbeck, et al., 13 Ohio St. 471; Jackson v. Harrison, 17 Johns. 66.

The defendant Miller could not avail himself of the right to re-enter the leased premises under the terms of the lease, without having first made a demand of the rent due, and in the absence of any allegation that such a demand was made, the matter set up in the answer did not constitute a defense.

The demurrer to the answer was properly sustained.

It .is insisted, however, that the complaint is fatally defective and that the demurrer must be carried back to the first defective pleading.

The objections urged against the complaint are :

1st. That it does not show that the defendant entered upon the possession of the plaintiff.

. 2d. That two causes of action are stated in one and the same count.

Undoubtedly it is necessary, in an action of forcible entry and detainer, to show in the complaint that the defendant entered upon the possession of the plaintiff.

The allegation in the complaint in the case at bar “that Miller * * * by such force, violence and threats of violence did then and there, to wit, on said first day of March, 1876, turn said complainant, Sparks, out of possession of said premises” is in substance an averment that the complainant was in possession of the premises at that date, and, taken in connection with the other averments of the complaint, satisfies the rule above stated. Sparck v. Forsyth, 40 Ill. 440; Lee v. Stiles, 21 Conn. 504.

. “ That which is apparent to the court and appears from a necessary implication out of the record is the same as if it were expressly averred.” State v. Nichols, 8 Conn. 499.

Whether the facts stated in the complaint constitute a forcible entry or not is immaterial as the action lies, where the possession is maintained with force and strong hand, although the entry may have been peaceable (R. S., p. 332).

The allegations of the complaint show fully and clearly a forcible detainer under section two of the act. . That the complaint alleges a demand of possession, when no demand was necessary, does not affect its sufficiency, or render it obnoxious to the objection that two causes of action are stated in one and the same count.

For these reasons the objections to the complaint are not regarded as well taken.

Section seven of the act concerning certiorari to justices and probate courts, provides that the district court “ shall give judgment in the cause as the right of the matter may appear * * * and may affirm or reverse the judgment in whole or in part, or may render such judgment as the facts and law warrant.’ ’

Under the broad provisions of this section, we have no doubt of the power of the district court to render an independent judgment; to review and revise the whole case, and give such judgment as the justice should have given. Berry v. Lowe, 10 Mich. 9.

In the case at bar, the district court, upon the hearing, entered an independent judgment to the effect that the complainant, Sparks, recover the possession of the premises in controversy; that he have a writ of possession therefor, that he recover his costs as against Miller, and that the defendant Newton go hence without day and recover his costs against the complainant.

The power of the court to render such a judgment we think full and complete under the concluding clause of the section above quoted, to wit: “ or may render such judgment as the facts and the law warrant.”

The authorities relied upon by the appellant were under statutes in which this provision does not occur.

In the leading case of Sheldon v. Quinlin, 5 Hill, 442, the provision construed is “or give such judgment for either party as the very right of the matter may seem to require.”

Justice Bbonson says, “the word ‘party’ as here used stands for plaintiff or defendant, and includes all persons belonging to a particular class. The clause does not mean that a judgment which is entire may be reversed as to one defendant and affirmed as to another, without any regard to the rules of law applicable to the case.”

This decision was followed in "Wisconsin in a number of cases, but is questioned by Chief Judge Dixon in the case of Ditting v. Weber, 29 Wis. 560.

It will be observed, however, that the provision is different from "that in the statute of this State, in the essential words upon which the decision is made to turn.

We think the plain intention of the legislature was to empower the district courts to render an independent judgment upon the law and the evidence, without reference to the inquiry whether the judgment of the justice was an entirety or otherwise.

The judgment of the court below is affirmed with costs.

Affirmed.