State ex rel. Carter v. Votaw , 13 Mont. 403 ( 1893 )

De Witt, J.

Relator contends that a justice’s court has not jurisdiction, under the forcible entry and unlawful detainer act (Code Civ. Proc., § 716 et seq.), of an action by a landlord against a tenant holding after default in payment of rent. Const., art. 8., § 21, as to jurisdiction of justices’ courts, provides, inter filia, that they “shall also have concurrent jurisdiction with the district courts, in cases of forcible entry and unlawful detainer.” We are of opinion that this leaves the jurisdiction of these cases in the justice’s court as provided in the statute. (Code Civ. Proc., § 716 et seq.)

Relator contends that the rule as to the tenant not disputing the landlord’s title does not apply to such a landlord as the plaintiff in the case under review, who was au administrator of the estate of the deceased landlord who leased to relator. He relies upon Reay v. Cotter, 29 Cal. 169. But section 727, Code of Civil Procedure, concludes that contention, which section, and section 37 supra, leave relator subject to the estoppel of the relation of landlord and tenant.

Relator contends that, in his answer, he denies the allegations by which plaintiff sets forth his right of possession of the real estate in question, and that hence the justice was without jurisdiction to enter, without a trial, the judgment for restitution. Indeed, this allegation in his affidavit moved this court to grant the writ. It is true that the answer does deny plaintiff’s right of possession, but such denial, besides being in the nature of a conclusion of law, loses all force in face of the admissions of the answer. It is admitted by the answer that defendant leased the premises from plaintiff’s intestate, and that, as such tenant, he is indebted and in default for seven months’ rent. He thus concedes himself to be a tenant holding over after default in payment of rent. The judgment on the pleadings was therefore correct.

After an extended and patient hearing, the court asked relator, who appeared in person, what issues there were in the pleadings before the justice, upon which he claimed evidence could have been introduced which would have added any thing to the facts pleaded and conceded. The relator was unable to point out to us any such needed evidence, and our own investigation has discovered none. We are therefore of opinion that upon this review no reason has been shown why we should annul or modify the proceedings of the justice.

The caséis therefore remanded to the justice’s court at the costs of relator.

Writ denied.

Harwood, J., concurs. Pemberton, C. J., did not sit in the hearing or determination of this case.