Pinnix v. Jones , 127 Miss. 764 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

The appellant was a tenant of the appellee, Jones under a lease which would expire on December 31st; on December 18th prior thereto Jones sold the leased premises to the appellee Pennington, and on the same day gave the appellant the following written notice: “I have sold the place you are now on and want possession. Please govern yourself accordingly.”

The appellant claiming to have leased the premises for the following year, declined to surrender the same. On the 15th of January Jones commenced a proceeding in the court of a justice of the peace for the removal of the appellant from the premises under the provisions of section 2885, Code of 1906 (section 2383, Hemingway’s Code), Avhich cause in due time was appealed to the court below. While it was there pending Pennington instituted an unlawful entry and detainer proceeding against the appellant for his removal from the premises, which cause was also appealed to the court below in due course, and the two cases Avere there consolidated over the objection of the appellant, and on the trial thereof a verdict and judgment was rendered awarding possession of the premises to Pennington, together with double rent therefor for the time they were "occupied by the appellant after the expiration of his lease.

The two causes should not have consolidated, and the appellant’s request for an instruction directing the jury to return a verdict in his favor against Jones should have been given; but the error in consolidating the cases and in declining to grant the instruction were harmless except in so far as the cost of the Jones case was thereby imposed on the appellant, for no eA'idence was introduced on the trial that would not have been competent in the unlawful entry and detainer proceeding in which Pennington was the plaintiff.

The judgment for double rent is objected to on the ground that Pennington did not notify the appellant to vacate the premises as required by section 2888, Code of 1906 (section 2881, Hemingway’s Code). Assuming for the sake of the argument that such a notice was required before Pennington would be entitled to double rent, the notice to vacate given the appellant by Jones was evidently for Pennington’s benefit, and is as effective as if it had been given by Pennington.

Tbe judgment of tbe court below will be affirmed, except that it will be modified to tbe extent that all tbe costs incurred in tbe case of Jones against tbe appellant prior to the consolidation of tbe Pennington case therewith will be taxed against Jones.

Affirmed with a modification.