Dale v. Doddridge , 9 Neb. 138 ( 1879 )

Maxwell, Oh. J.

In the year 1874 the defendant leased to the plaintiff' lots one and two in block 144, in the city of Columbus, for $15 per month rent. The plaintiff immediately entered into the possession of the premises, and has continued in possession of the same. In March, 1877, the plaintiff entered into a verbal contract with the defendant for -the purchase of the premises for the sum of $1,000, to be paid some time thereafter in county warrants. There is some testimony tending to show that the plaintiff was to pay $15 per month rent up to the time of making the payment, although the plaintiff denies that such was the fact. It is clearly shown that the plaintiff made certain improvements on the premises in March, 1877, to be applied on rent in case the sale was not completed. No rent was paid in any other manner after that period. In September, 1878, the defendant in error instituted this action before a justice of the peace, and judgment was rendered against the plaintiff in error. The district court affirmed the judgment of the justice, and the plaintiff in error brings the cause into ;this court by petition in error.

The attorneys for the defendant in error object to the bill of exceptions because it is alleged that it was not signed during or atthe close of the trial. It appears from the docket entry found in the hill of exceptions that “the said jury were thereupon discharged. It is therefore considered by me, at 11:20 o’clock p.m., this 14th day of September, 1878, that the said plaintiff have restitution of the premises described in said complaint, and recover of said defendant the costs of this action as hereinafter taxed. Thereupon the said defendant immediately presented his bill of exceptions, which is duly allowed.

“ Stephen S. McAllister, J. P.”

The certificate to the bill of exceptions is as follows: “ Whereupon the court rendered judgment against said defendant on said verdict, to which defendant excepted and still excepts, and tenders this his bill of exceptions, which is accordingly allowed and signed as a true bill.

“Witness my hand this 14th day of September, 1878.

“ Stephen S. McAllister, J. P.”

Afterwards there is a statement to which no signature is appended, saying that the bill was actually signed on the 18th day of September, 1878.

The court must presume the docket entry and the certificate to have been made at the time they purport to be, and even if the supplemental statement had been signed it would be void, as a justice could not thus stultify himself. In deciding this application, it is unnecessary to decide how far the act of 1877 [Laws, 1877, p. 11] in relation to bills of exceptions applies to proceedings before justices of the peace, although probably it has no application.

On the trial of the cause the defendant in error offered in evidence the following notice: “ To W. B. Bale.

“ Sir : I wish you to leave the following premises now ' in your occupation, to-wit: lots numbered one (1) and two (2) in block one hundred and forty-four (144) in the town, now city, of Columbus, and known and designated on the lithographed and recorded plat of said town, now city, situated in Platte county, state of Nebraska. Your compliance with this notice within three days after its service will prevent any legal measures being taken by me to obtain possession.

“ I am respectfully,

“ William B. Boddridge.

“By G-. C. Baunum, his agent. Bated Sept. 4, 1878. ”

On the 7th day of September, 1878, the action was commenced. The plaintiff in error objected to the introduction of the notice on the ground that it was “ insufficient.” The particular cause of insufficiency is not pointed out, and the notice, so far as we can perceive, is sufficient in form. A more serious question arises as to the time the action was commenced. The notice is dated the 4th of September, 1878, and appears to hkve been served on that day, and requires the plaintiff herein to remove from the premises within three days after its service. Under such a notice the day of service is excluded, and the computation commences on the 5th, and the tenant is entitled to the 5th, 6th, and 7th days in which to remove from the premises.

In Wright v. Lepper, 2 Ohio, 300, the court say: “ There can be no question that he who is bound by a condition to do an act within six months has the whole period of six months to perform it in, and cannot be called upon by the other party to perform it before the last day.” And where an act is required to be done within a certain time after the date, or day of date, the day of the date must be excluded, and the party may perform the act at any time within' the limitation. Farwell v. Rogers, 4 Cush., 460. Oatman v. Walker, 33 Me., 71. Wiggin v. Peters, 1 Met., 127. Ewing v. Bailey, 4 Scammon, 420. Windsor v. China, 4 Grreenleaf, 298. The plaintiff was therefore entitled to the whole of the 7th day of September in which to remove from the premises, and no action could be maintained before the expiration of the time fixed in the notice. But the notice is for the protection of the tenant, and may be waived by him, and will be waived if he proceed to trial without objection on that ground, more particularly so where he claims title in himself to the premises.

' On the trial of the cause the plaintiff in error offered in evidence a transcript of the proceedings in the case of W. B. Doddridge v. W. B. Dale and Caroline E. Dale, in the county court of Platte county, to which the defendant in error objected. The objection was sustained and the evidence excluded, to which the plaintiff herein excepted. It appears from the transcript offered in evidence that on the 13th day of August, 1878, the defendant in error instituted proceedings against the plaintiff in error and his wife for the forcible detention of the premises' described herein. On the 26th day of August, 1878, the cause was tried to the court, and the following judgment rendered: “ The court being fully advised in the premises, finds that the cause of action herein accrued more than one year prior to the commencement thereof. It is therefore considered and adjudged by the court here that this action be dismissed, and that the said plaintiff (defendant in error) be adjudged to pay the costs herein, taxed at $6.15 as per margin.

“ John G. Higgins,

“ County Judge.”

Section 1021 of the code provides that: “Judgments either before the justice or in the district court, under this chapter, shall not be a bar to any other action brought by either' party.” Gen. Stat., 689. And in Myers v. Koenig, 5 Neb., 422, the court say: “It is expressly provided in the law that the judgment * * shall not be a bar to an after action brought by either party.” Ho the provisions of section 1021 authorize a plaintiff, upon a judgment being entered against him in proceedings for forcible entry and detainer, to at once institute another action, and so ad infinitum ? In other words, is the judgment of the justice upon the matters in issue in the case conclusive in that form of proceeding, until modified or reversed ?

In Kelly v. Nicholas, 10 Ohio State, 318, the court say: “ The action of forcible entry and detainer was a special statutory remedy provided by ‘ an act to regulate the action of forcible entry and detainer/ passed February 25, 1831, and subsequent amendments thereto.” * * Section 9 of the act provides: “that no appeal shall be allowed from the judgment of the justice; but that the proceedings of said justices might be removed by certiorari into the court of common pleas of the county.” On page 326 of the same case the court say: “It is true the proceeding in forcible entry, and detainer is not, strictly speaking, a civil action at .law nor a suit in equity, but was doubtless intended to be embraced by the provision of section 605 of the code, as in civil actions given by statute. And,the judgment and proceedings in forcible entry and detainer are clearly within sections 511 and 524 of the' code. The subject was there equally-subject to review and reversal by the court of common pleas, as if it had been an action at law.”

That the judgment of the justice is a final judgment from 'which error will lie there is no question. And as- between the -parties in that proceeding as to the matter put in issue, it is final, until modified or reversed, there is no doubt. If a party upon being defeated in an action, could immediately institute another, and upon being defeated in that at once bring another action, and so on, indefinitely, the proceeding would be an expensive farce, determining nothing, and binding no one'by the adjudication. Rut such is not the law. No appeal' is allowed, but either party may have the judgment reversed for errors appearing on the record. Rut the judgment in this proceeding, whether rendered before a justice of the pea,ce or in the district court, is not conclusive as to the title, as it determines only the right to the possession. Harvie v. Turner, 46 Mo., 444. Taylor’s Landlord and Tenant, § 793. The judgment, therefore, is no bar to any other action in relation to the title to the premises. The court therefore erred in excluding the transcript offered in evidence, it being apparent that the detention complained of is the same as that upon which this action is predicated

The offer to show that tbe plaintiff had made valuable improvements on tbe premises to tbe amount of $1700 was properly excluded, there being no testimony tending to connect tbe same with tbe improvements authorized by tbe agents- of tbe plaintiff in March, 1877, or to show that tbe defendant herein authorized tbe same. Tbe testimony as to payment of taxes, however, should have been received if, as claimed, they were paid “ with tbe full knowledge and consent of tbe plaintiff ” (defendant in error). It is unnecessary to pass upon tbe character of tbe plaintiff’s possession, and for this reason it is unnecessary to review tbe instruction asked. ■

Eor tbe reasons above assigned tbe judgment of tbe district court is reversed, as also tbe judgment of the justice of tbe peace, and tbe cause remanded for further proceedings.

Reversed and remanded.