Porter v. Straughters

86 A.2d 410 (1952)

PORTER
v.
STRAUGHTERS.

No. 1165.

Municipal Court of Appeals for the District of Columbia.

Argued December 10, 1951. Decided January 24, 1952.

Charles B. Sullivan, Jr., Washington, D. C., for appellant.

John C. Poole, Washington, D. C., with whom Dudley G. Skinker, Washington, D. C., was on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

Appellant sued for possession of a room for which appellee had failed to pay rent totaling $174. Appellee by counterclaim alleged that for a period of 284 weeks she had paid $12 per week, whereas the rent ceiling on this room was $26 per month, and that she was entitled to recover double the amount of the overcharge. The statute of limitations was affirmatively pleaded by appellant. The court, sitting without a jury, gave judgment for the appellant for possession and for rent due. The trial court further found that the rent ceiling for this particular room was $26 per month and gave judgment for the appellee for double the amount of the overcharge from July 1948 through June 1950. It further found that the accommodations were decontrolled as of July 1, 1950. From the agreed statement on appeal approved by the trial court we gather the following facts:

Appellant operated a rooming house, and in 1943 leased to appellee a room for a rental of $12 per week. In 1945 she secured a rent ceiling for the premises, but she claims that the order of the Rent Administrator was void ab initio because she petitioned for a rent ceiling on 16 rooms and the order when issued was for 14 rooms. The record does not contain the order of the Administrator. A rent control examiner testified that the rent ceiling on the room occupied by the appellee was $26 per month and was listed as "light housekeeping." Both the appellant and the appellee testified that the room occupied by the tenant was the same room as described by the examiner for the Rent Administrator.

The landlord contends that the trial court erred in finding that there was a rent ceiling of $26 per month. She claims the order on which the finding was based was void. This contention is answered by testimony as set forth in the statement of evidence in which the rent examiner testified that "from the records * * * the rent ceiling for the larger room on the second floor front * * * was established at $26.00 per month with minimum standards including `light housekeeping'". There does not appear to be any discrepancy in the order of the Administrator, and, if there were, the duty would have been upon the landlord to petition the Administrator to clarify such order. Hall v. Henry J. Robb, D.C.Mun. App., 34 A.2d 863; Corbin v. Cusick, D.C. Mun.App., 80 A.2d 50.

The appellee asks us to consider the portion of the judgment relating to the counterclaim, i.e., decontrolling of these premises on July 1, 1950. However, we feel that by failing to file a cross-appeal from that portion of the judgment she is precluded from now bringing the question before us. 1915 16th Street Co-operative Ass'n v. Pinkett, on rehearing, D.C.Mun. App., 85 A.2d 58. An appellee is not entitled to allege error in the rendition of judgment against him on his counterclaim where he failed to prosecute an appeal therefrom. Clark v. Killian, 103 U.S. 766, 26 L.Ed. 607; 5 C.J.S., Appeal and Error, § 1498(2).

The trial judge awarded the appellee attorney's fees covering services in the trial. Appellee now asks us to remand the case to the trial court to have attorney's fees determined for the handling of this case on appeal. The procedure to be followed in this case has been set out in Heitmuller v. Berkow, 83 U.S.App.D.C. 342, 171 F.2d 741, where it was held that the fixing of attorney's fees for services rendered in representing a tenant on appeal were to be fixed by the trial court. See also our recent decision of Lincoln Loan Service v. Motor Credit Co., D.C.Mun. App., 83 A.2d 332.

The case is therefore affirmed and remanded to the trial court for consideration of the question of attorney's fees on appeal.

Affirmed.