Weaver v. Roberson

Evans, P. J.,

dissenting. A dispossessory warrant for failure to pay rent is a summary proceeding. If the tenancy is admitted, the statute allows but one defense to arrest its progress, and that is a denial that the tenant is in arrears. The recovery of double rent is but an incident of the proceeding, which is in no sense a suit for a money demand. The tenant may show that he has not defaulted in the payment of his rent bjr evidence that the landlord has endamaged him to the extent of the rent claimed by violating the rental contract, but the tenant can not recover in the.dispossessory proceeding any excess of damages over the landlord’s rent claim. This is so because the issues which can be made in a summary proceeding have their limitation in the statute which authorizes it. If the landlord seeks to dispossess a tenant for failure to pay rent, and the landlord, by violating the rental contract, has endamaged the tenant in a sum greater than the rent, the tenant may, under the facts of this case, stay the summary proceeding and go into equity to recover his damages. The tenant’s right to equitable relief is dependent in part upon his inability to recoup his entire damages in the summary proceeding, where the damages exceed the rent. The summary proceeding can not be converted by the defendant’s plea into a proceeding wherein the tenant may obtain affirmative relief. It is for these reasons that I dissent from the judgment of the court.