Lichty v. Clark , 10 Neb. 472 ( 1880 )

Maxwell, Oh. J.

This is an action of forcible entry and detention. It appears from the bill of exceptions that in January, 1879, the plaintiff represented to a tenant of the defendant that he had purchased from the defendant Clark the north-east quarter of section five, township one, range sixteen, in Richardson county, then in possession of the tenant, and induced him to surrender the possession. Proceedings to oust the plaintiff in error from the possession of the premises were instituted before a justice of the peace in December, 1879, and judgment rendered in his favor. The district court reversed the judgment of the justice and rendered judgment in favor of the defendant in error. The plaintiff herein brings the cause into this court by petition in error. The first question to be determined is, did the district court err in reversing the judgment of the justice of the peace?

On the trial of the cause before the justice the following letter was read in evidence:

“Palls City, Neb., Monday, Jan. 27,1879.

“J. W. Clark, Esq., Cincinnati, Ohio — Dear Sir: Mr. Smith (defendant’s agent) asks me to write to you. He has told you of Mr. Pox. (the tenant) moving to his house and I moving where Eox lived. Smith asks if this is done as a dare to you, to which I answer emphatically — no. I have no means nor disposition to litigate. When you come west I will buy your claim or vacate. If you will not take my house in the trade I must ask time till April first before I am ready to buy. Should we fail in a bargain, I would sell you the Reavis claim which I now own, and try to rent the farm from you till I am able to buy. I want the farm if we can agree on the price. The piece of land suits me, and I hope to buy it out amicably; but as I said, I can’t pay money until April first next. “ Truly yours,

“ Sam. Lichty.”

To this letter Clark, on the twenty-eighth of March of that year, returned an answer, saying in substance that the letter from Lichty was the first intimation that he had received that Lichty had moved on to the farm; that the farm had been in charge of one Smith, an agent of Clark, and that he had notified Eox (the tenant) in the fall of 1878 that he must surrender the possession of the farm in the spring of 1879, and asking Lichty to give his (Clark’s) son possession of the place. The plaintiff having introduced in evidence before the justice a notice to quit, served upon Lichty on the second of December, 1879, also offered in evidence a.notice to quit, served upon him on the ninth day of June of that year, which was objected (o as immaterial and irrelevant, and because one notice had already been introduced in evidence. This evidence should have been received, not necessarily as a statutory notice, but as a part of the evidence on behalf of Clark, showing his conduct toward the plaintiff — whether in fact he recognized him as a tenant or refused to recognize him as such, and insisted throughout that he should vacate the premises. The justice, therefore, erred in the exclusion of this testimony. The district court, therefore, did not err in reversing the judgment of the justice.

Did the court below err in rendering judgment for the defendant in error ? "When the judgment of a justice of the peace is reversed in the district court the case stands for trial de novo. And this seems to have been the course pursued in this case. The judgment of the district court is: “ that the judgment of said justice of the peace be reversed, vacated, and set aside,” and in continuation it is stated:' “thereupon, both parties being in court by their respective attorneys, this cause came on further for hearing upon the proofs in this case, from which the court does find that the defendant Samuel Lichty is guilty of unlawfully withholding and detaining the premises in the complaint of the plaintiff described from the plaintiff John W. Clark. It is therefore considered,” etc., the court rendering judgment of ouster and for restitution, “ to all of which rulings, orders, findings, and judgment of the court the defendant then and there duly excepted.” There is nothing in the record to show that the plaintiff in error excepted to the court proceeding to the trial of the case. He was entitled to a trial by jury, but this is a right that he could waive. But whatever the mode, here was a-trial of issues of fact, and no motion for a new trial was made in that court. The alleged errors occurring on the trial in the district court therefore cannot be considered here. ¥e have carefully examined the evidence, however, and find the judgment to be clearly right, and that the plaintiff in error, so far as appears from the record, has no right' to the possession of the premises in question. The judgment of the court below must be affirmed.

Judgment aeeirmed.