Weber v. Powers , 114 Ill. App. 411 ( 1904 )

Mr. Presiding Justice Adams

delivered the opinion of the court.

Counsel for appellant contend that the motion to vacate the judgment having been made at the term at which the judgment was rendered, errors, if any, in the judgment may be reviewed on this appeal. The law is to the contrary. The appeal here is not from the judgment, but from the order denying the motion to vacate the judgment. In Mumford v. Tolman, 157 Ill. 258, 265, the court say: “ In the argument of counsel for appellant on the first three objections to the judgment they seem to lose sight of the fourth, viz., that the courts passing on such motions exercise an equitable jurisdiction, and argue the case as though this was an appeal from the judgment itself. The question, on motion tó vacate a judgment entered by confession, is not whether the judgment shall be set aside for errors of lawj but whether there are equitable reasons why it should be opened up to let in a defense. Knox v. Winsted Savings Bank, 57 Ill. 330; Hansen v. Schlesinger, 125 Ill. 230.” See also, to the same effect, Goergen v. Schmidt, 69 Ill. App. 538, and State Bank of Freeport v. Blake, 78 ib. 166, 173, and cases cited. In addition it may be said that by the cognovit, warranted by the power of attorney, errors, if any, in the judgment have been released. Carpenter v. First Nat’l Bank, 119 Ill. 352, 356, and cases cited. In view of these authorities the question to be decided is. whether the court erred in holding that there is no equitable reason for vacating and setting aside the judgment. It was incumbent on appellant to show to the court such equitable reason, if any exists. It appears from his affidavit that he remained in possession of the premises five months after the expiration of his term, and paid, during that time, rent to appellee in accordance with the terms of the lease. A tenant by holding over after the expiration of his term, and paying rent to his landlord, in accordance with the terms of the lease, which rent the landlord receives, becomes tenant for another year, at least, on the terms of the original lease. In such case the law implies

" a continuance of the tenancy, under the terras of the" lease. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151. Appellant’s counsel, however, contend that the agreement between the parties manifested the intention that appellant was not to remain in possession of the premises, under the terms of the old lease, or, in other words, that the agreement between' them manifested a contrary intention. Counsel, in support of this contention, rely on certain instructions given by the trial court in the case last cited, of which the Supreme Court, on appeal, said the appellant had no just ground to complain; and on certain"language of the latter court in reference to the case of Crommelin v. Theiss & Co., 31 Ala. 412. The Alabama court, in that case, said that the new parol contract might, although void, be looked to to explain the intention of the parties, and that it was. materially different from the original lease, in that it did not, like the original lease, provide for quarterly payments, and said: “ The new contract, thus made, and thus differing from the original lease, destroys the implication of the rene',val . of the original lease, from an unexplained holding-over.” The Supreme Court, in the Gardner case, say, in reference to the implication from holding over : “ Of course that is not to prevail against the contrary intention manifested by the acts of both parties, landlord and tenant.” Is there anything in the acts of the present parties, or in any agreement between them, manifesting an intention that appellant was not to hold under the terms of the original lease ? .It was for the trial court to determine this question on the evidence presented. Appellant, in his affidavit, says that “ shortly before the expiration of said lease, prior to May 1, 1902, the plaintiff, .Powers, called on this affiant and asked him whether he would be willing to remain at the rate of fifty dollars per month for rental; that affiant agreed to remain, provided said Powers would make certain repairs,” etc., stating what repairs he wanted, and that they were not made, etc. There is certainly nothing in this inconsistent with appellant continuing as appel-. lee’s tenant, under the terms of the old lease. Appellee, in his affidavit, says that “ prior to May 1, A. D. 1902, the date of the expiration of the lease between this affiant and the said defendant, Max Weber, being the instrument herein sued upon, this affiant agreed with the said Max Weber that the said Max Weber should remain in possession of the said premises at 4346 JForestville avenue, in the city of Chicago, aforesaid, at the same rental reserved in said lease, namely, fifty dollars per month, and upon the same conditions and terms as set forth in the said lease, and this affiant agreed to execute a new lease of said premises, upon 'the same terms and promises as set forth in said lease.” ' Powers proceeds to state, in substance, that in August, 1902, appellant agreed with him to sign a two-year lease of the premises, on the same conditions, terms and payments as set forth in the original lease. The facts thus stated clearly manifest no intention that appellant was not to hold under the terms of the expired lease. Had the agreement been carried into effect, the liability of appellant would have been the same as that he now seeks to escape.

Appellant claims that the repairs which appellee agreed to make were not finished in September, 1902, when he says he removed from the premises; but appellee deposed that they were all made, and Crawford deposed that they were all finished in August, 1902. . Also, it appears from appellee’s affidavit, without contradiction, that appellant never made any complaint in respect to the repairs, but, about September 15,1902, stated to appellee that he would not sign a lease, and that he intended to vacate the premises, because the price of coal for heating the premises was so high, and that he intended to move into a steam-heated apartment and save expense. We are inclined to the view that appellant never intended to sign any new lease; but that his intention was to continue in possession of the premises, on the terms of the original lease, until such time as he might find it convenient to quit, acting under the mistaken impression that his liability would cease on his quitting the premises. He retained possession for five months, and until the renting season had passed, and abandoned the premises without any legal reason or excuse, and we think the trial court was fully warranted in holding that there was no equitable ground for vacating the judgment.

Counsel for appellant object that the declaration is in debt, and the judgment for damages only; that the judgment recites that appellant confessed judgment by his attorney in fact, whereas the warrant of attorney runs to an attorney at law; and that counter affidavits are inadmissible in case of a motion to vacate a judgment. If this were an appeal from the judgment, which it is not, the fact that the judgment is for damages, instead of technically in debt, would not be cause for reversal. Italian-Swiss, etc., Co. v. Pease, 194 Ill. 98, 108. The cognovit recites: “ And the said Max Weber, defendant in the above entitled case, by Otis King Hutchinson, his attorney, comes,” etc. This is the usual form and is sufficient. The court will take ' notice that Mr. Hutchinson is a licensed practicing attorney of this state. Besides, there is no inconsistency in appellant’s attorney at law being also his attorney in fact. The bill of exceptions shows no objection to the reading of counter affidavits in evidence, nor is the admission of such affidavits assigned as error; therefore, the question of their admissibility is not presented for decision. Counsel cite Smith v. Pringle, 100 Penn. St. 275, apparently in support of the contention that the provision in the lease authorizing confession of judgment has no application in the present case. That case is not in the least applicable. If appellant was holding over in accordance with the terms of the original lease, in other words, if his holding over was a continuance of the tenancy, then the authority to confess judgment, which is a security to the landlord and an important provision of the lease, is as applicable as the covenant to pay rent, or any other provision or term of the lease. If it should be conceded that there was a new agreement between the parties inconsistent with the legal implication arising from appellant’s holding over, then appellant, while holding over, was a tenant from month to month, and, in order to terminate the tenancy, a thirty days’ notice from appellant to appellee was necessary. Field v. Herrick, 14 Ill. App. 181, 188. It appears in the statement of that case that there was an agreement for a new lease materially different from the original one in its terms. The notice from the tenant must be a thirty days’ notice of the time when the tenant will quit, and the time set must be a time at which the tenant would have legal right to quit. 2 S. & C.’s Stat., 1894, p. 2504, sec. 3; Covert v. Nolan, 10 Ill. App. 629. A notice from a tenant to terminate a monthly tenancy should name the last day of the current month of the tenancy as the quitting time. 2 Taylor on Landlord and Tenant, 8th ed., sec. 477; Wood’s Landlord and Tenant, secs. 40 and 41. No such notice, as required by law, is shown to have been given by appellant. Appellant’s counsel cite Little v. Dyer, 138 Ill. 278, as authority for the proposition that, if evidence other than the lease is necessary to connect the claim sued for with the warrant to confess judgment, judgment cannot be confessed. The case has no application here. In that case the amounts paid by the lessor for water rates and gas bills, and for keeping the premises in a clean and healthy condition, which were unliquidated, were made, by the lease, additional rents, thus requiring a judicial investigation to determine what the rent was. In the present case the rent is fixed by the lease itself. The judgment in this case was rendered in term time, by the court, and the same presumptions will be indulged in support of it as in the case of ordinary judgments of superior courts of general jurisdiction. Bush v. Hanson, 70 Ill. 480; Hansen v. Schlesinger, 125 Ill. 230.

The judgment of the court denying the motion to vacate the judgment by confession will be affirmed.

Affirmed-.