Paregol v. Smith , 1954 D.C. App. LEXIS 239 ( 1954 )

HOOD, Associate Judge.

Appellant landlord sued appellee tenant for possession of' the leased premises on the ground of nonpayment of rent. The complaint did not make claim for a money judgment for rent in arrears, but merely asked judgment for possession. Personal service on the tenant was not made and service was effected by posting a copy of the summons and complaint on the premises. On the return day the tenant appeared in court without counsel and apparently admitted nonpayment of the rent. Thereupon the landlord asked and obtained permission to amend the complaint to include a claim for a money judgment. Judgment was then entered for possession and for rent. Shortly thereafter a writ of restitution on the judgment for possession was issued and executed. About six months later a writ of attachment on the money judgment was issued and funds, in the hands of the garnishee were seized. The tenant then moved to vacate the judgment for rent. -His motion was granted and the landlord has appealed.

The basic question before us is whether the trial court in the first instance had authority to permit the landlord, who had summoned the tenant into court to answer a'complaint for possession, to add to that complaint a claim for a money judgment for rent and to enter judgment thereon.

The action for possession in the landlord and tenant branch of the trial court is a purely statutory proceeding and is designed to afford a summary method of obtaining possession of real estate.¹ Service of process may be made under certain conditions by posting a copy of the summons and complaint • on the premises, as was done in this, case.² Originally-the sole relief obtainable in the proceeding was a judgment for possession. By later enactment it was provided that “the landlord may join with his claim for recovery of the possession * * * a claim for all arrears of rent”, in which case if he obtains judgment for possession he is'' also entitled to' judgment for rqnt³ However, the proceeding remains basically and essentially one' for possession and recovery of a money judgment is but incidental to the basic action.⁴ The two claims, one for possession and the other for rent, are separate and distinct. As we' have pointed. out, judgment for possession may be awarded without personal service, but a judgment for rent must rest .on personal service or its equivalent. The judgment for possession is executed by writ of restitution. The judgment for. rent is executed in the same manner as any other personal money'judgment. The landlord is not required to join 'his claim for rent with'his claim for • possession, but may make the claim for rent in a separate action in another branch of the court. '

The result is' that a landlord who commences a summary proceeding for possession of real property has the privilege, if he so elects, to add to his claim for possession a claim for rent in arrears and thus utilize the summary procedure to obtain a strictly money judgment as ah. incident to the possessory action. Our question narrows ■ itself to whether the landlord must make his election when he commences the possessory action or may make it sometime thereafter.

The statute says the landlord “may bring an action to recover possession”,⁵ and “may join with his claim f.or recovery of the possession * * * a claim for all arrears of rent”.⁶ Although the statute does not specifically state that the . claim for rent may be joined only when the pos-sessory action is commenced, we think such is the clear implication of the statute, We do not think it was intended that a landlord who has sued for possession and made his choice not to add a claim for rent, may at some subsequent stage-of the proceeding change his mind and add a claim for rent. We have held that despite the informal nature of landlord and tenant proceedings, the tenant is entitled to be informed by the complaint of the nature of the -recovery sought agáinst him.⁷ If a tenant brought into court. to answer a claim for possession can be suddenly . faced with another claim for rent, he ought to be allowed time to consider this new claim and prepare to' defend it. This is especially true because Rule 4(c) of the landlord and tenant branch forbids the tenant to file a counterclaim unless the landlord asks for a. money-judgment for rent, If after suit is brought, , a new claim can be added, additional time given to defendant, and counterclaim interposed, to the additional claim, the summary nature of the proceeding is lost. It is noteworthy that the rules of the landlord and tenant branch make no provision for adding a claim for rent after suit is commenced. The form pf complaint provided by the rules, which was the form used in this cas.e, clearly indicates that the claim -for rent,-if one be made, should be made in thp complaint which is required to be verified. , .

Our 'conclusion is that a landlord who sues 'for possession and omits addition of 4' claim for rent, may not thereafter in that suit add such a claim. Accordingly .the trial court was correct in setting aside the money judgment in this case.

We may add that our ruling takes away no right from the landlord. 'It merely compels him in filing for possession to elect whéthér he shall then''add his claim' for rent or make such claim the" basis of a separate suit in another branch of the court. This, we believej will help prevent undue complexity in proceedings which, although summary in nature and informal in procedure, are vast in number. In 1953 more than 60,000 complaints were filed in the landlord and tenant branch of the trial court and it is common knowledge that in the great majority of those cases the tenants '.are not represented by counsel.

Affirmed.

1 . Code 1951, 11-735, as amended by Pub.L.No.71, 83d Cong., 1st Sess., approved June 18, 1953, 67 Stat. 66.

2 . Code 1951, 11-736; Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766.

3 . Code 1951, 45-911.

4 . Shipley v. Major, D.C.Mun.App., 44 A.2d 540.

5 . Code 1951, 45-910.

6 . Code 1951, 45-911.

7 . Shipley v. Major, D.C.Mun.App., 44 A.2d 540.