Nelson v. Smith

Mr. Justice Waterman

delivered the opinion of the Court.

This was a proceeding against appellants for the forcible detainer of certain premises.

Judgment having been rendered against them, appellants prosecute this appeal, and assign as error that there was a misjoinder of plaintiffs and also of defendants.

Appellants made no such objection in the court below, where it could easily have been obviated; they can not urge it here for the first, time. Towan v. Emmet, 41 Ill. 319; City of Mattoon v. Fallin, 113 Ill. 249.

Appellants also insist that there was a variance between the complaint and the evidence introduced in support thereof. This objection is also made here for the first time. Such variance should have been pointed out upon the trial, that by proper amendment it might have been removed.

The defendants offered no evidence. A witness for the plaintiffs testified that appellant Shepard was a tenant of appellant Nelson, merely occupying a room in the premises. Shepard had himself been served with notice to quit, yet had continued to occupy, and had failed to disclaim any interest in, occupancy of, or claim to, the entire premises.

He defended against the claim of the plaintiff, that he, Shepard, was without right withholding possession of the entire premises from the landlord. The joint judgment against him and Nelson that they surrender the possession of the premises, if erroneous, is an error that does not injure him. Reid v. Foster, 37 Ill. App. 76; Hair v. Barnes, 26 Ill. App. 580.

There is no pretense that the rent was not past due, or that the plaintiffs are not justly entitled to the possession of the premises.

A joint action against Shepard and Nelson was properly brought. Espen v. Hinchliff, 133 Ill. 468.

The defense and the appeal are without merit and the judgment of the Circuit Court is affirmed.