Summary
In Claughton v. Ford, 202 Miss. 361, 30 So.2d 805, 32 So.2d 751, the Court said: "This Court has uniformly held since the decision in October 1877 of the case of Cotton [Cotten] v. McGehee, 54 Miss. 621, that power to correct an error in the record of a judgment rendered by it at a former term so as to make the record thereof conform to the judgment it rendered is inherent in every court of record.
Summary of this case from Turner v. StateOpinion
No. 36421.
June 9, 1947. Motion to Correct Judgment Sustained in Part. November 10, 1947.
LANDLORD AND TENANT.
Evidence that defendant operated hotel pursuant to oral agreement with owner on a month-to-month basis and had refused to surrender possession thereof upon written notice of termination of tenancy and demand for possession, sustained decree awarding possession of hotel building, furniture and equipment to owner and appointing a master to make and state an account of damage to furniture.
ON MOTION. (In Banc. Nov. 10, 1947.) [32 So.2d 751. No. 36421.]1. COSTS.
On affirmance of a judgment, Supreme Court must include statutory damage for unsuccessful appeal, and clerk, in recording the judgment, should include statutory damage (Code 1942, secs. 1971, 1972).
2. APPEAL AND ERROR.
Where Supreme Court, on affirming judgment for landlord in suit to recover leased premises from tenant, failed, because of oversight, to award landlord statutory damages because of tenant's unsuccessful appeal, Supreme Court, on landlord's' motion to correct judgment after adjournment of term at which judgment was rendered, awarded landlord statutory demages, on ground that damages must be deemed to have been included in the judgment rendered when the case was decided (Code 1942, secs. 1971, 1972).
3. COSTS.
Fact that landlord was awarded double rent in action to recover leased premises from tenant holding over, did not prevent recovery by landlord of statutory damages because of tenant's unsuccessful appeal (Code 1942, secs. 1971, 1972).
4. COSTS.
On affirmance of decree for landlord in action against tenant to recover leased premises and its furniture and equipment for damages to furniture, measure of landlord's statutory damages because of tenant's unsuccessful appeal, could not be based on value of property, possession of which was awarded landlord, but could only be based on the interest in controversy in the suit (Code 1942, secs. 1971, 1972).
APPEAL from the chancery court of Pearl River county. HON. HARRIS SULLIVAN, Special Chancellor.
Jones Ray, of Jackson, and Stevens Calhoun, of Hattiesburg, for appellant.
The court erred in overruling the general demurrer of appellant to the original bill of complaint, for the reason that the bill squarely shows on its face that there was no semblance of equity jurisdiction in the cause and that the complainant had a plain, adequate, and complete remedy at law.
Lloyd's Estate v. Mullen Tractor Equipment Co., 192 Miss. 62, 4 So.2d 282; Code of 1942, Sec. 946.
The court erred in compelling appellant to go to trial at the October 1946 term of the chancery court of Pearl River County, as said cause was not triable at that term.
Davis v. Davis, 62 Miss. 818; Majure v. Johnson, 192 Miss. 810, 7 So.2d 545; Jones v. Hervey, 66 Miss. 99, 5 So. 517; Kalmia Realty Ins. Co. v. Hendrix (Miss.), 25 So.2d 407; Code of 1942, Secs. 1305, 1310.
Where a tenant holds over under a lease for a year or longer without any other agreement with his landlord in that regard upon the theory that the law in the absence of evidence to the contrary implies an agreement continuing the lease, he holds over for the same length of time as the original lease, as we construe the decisions cited under that paragraph, and it is also said that if the original lease was for less than a year the holding over will renew the tenancy for a similar period but not longer, because, of course, a holding over cannot be for any longer time than the original lease.
Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 So. 369; Tonkel v. Riteman, 163 Miss. 216, 141 So. 344; Usher v. Moss, 50 Miss. 208; Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 10 A.L.R. 272; Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Joor v. Elder, 1 Miss. Dec. 503; Davis v. Brown (Miss.), 29 So. 172; Hamilton v. Federal Land Bank, 175 Miss. 462, 167 So. 642; Hytken v. Bianca, 186 Miss. 323, 186 So. 624, 188 So. 311; Risk v. Risher, 197 Miss. 155, 19 So.2d 484; Viator v. Moses, 186 Miss. 419, 191 So. 412; Love v. Law, 57 Miss. 596; Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79; Wilson v. Wood, 84 Miss. 728, 36 So. 609; Alsup v. Banks, 68 Miss. 664, 9 So. 895, 24 Am. St. Rep. 294, 13 L.R.A. 598; Thomas Hinds Lodge No. 58 F. A.M. v. Presbyterian Church of Fayette, 103, 60 So. 66; Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891; Illinois Cent. R. Co. v. State, 94 Miss. 759, 48 So. 561; Morris v. Henderson, 37 Miss. 492; Moody v. Farr's Lessee, 33 Miss. 192, 195; Code of 1942, Sec. 692; 35 C.J. 1034, Sec. 174; 50 C.J. 732, Sec. 4, p. 738, Sec. 8, p. 740, Secs. 11, 12.
In point of legal operation each renewed lease is a new lease.
35 C.J. 1037, Sec. 178.
H.H. Parker and Williams Williams, all of Poplarville, for appellee.
Appellant had no assignment of the contract and the contract could not, and did not, decend to her by inheritance from T.L. Claughton. It died with T.L. Claughton.
Williams v. Johnson, 175 Miss. 419, 167 So. 639; Piaggio v. Somerville, 119 Miss. 6, 80 So. 342; State, to Use of Panola County, v. Oliver, 78 Miss. 5, 27 So. 988; U.S.F. G. Co. v. Parsons, 147 Miss. 335, 112 So. 469.
Appellant could not have a three year contract ending June 30, 1946, under a verbal agreement; such would be void under statute of frauds.
Tanner v. Walsh, 184 Miss. 147, 183 So. 278; Code of 1942, Sec. 264.
Assuming that appellant had a contract ending July 30, 1946, it ended at a fixed time, and according to her own theory of the case no notice to terminate was required.
Tanner v. Walsh, supra; Graham v. Cauthen, 175 Miss. 751, 168 So. 58; Code of 1942, Sec. 946.
Even though the appellant had such contract, her notice to terminate was timely given and terminated the contract.
Tanner v. Walsh, supra; Graham v. Cauthen, supra; Tonkel v. Riteman, 163 Miss. 216, 141 So. 344.
Assuming (not admitting) that appellant was holding over under the original lease, then she forfeited same and the forfeiture was declared by appellee.
The appellant held possession of the hotel and property under a monthly rental agreement. Appellant's monthly rental contract was terminated by the notices to terminate from Goodyear Yellow Pine Company and Jesse C. Ford.
The findings of the chancellor on a point of fact, on conflicting proof, unless manifestly wrong will not be disturbed but must be affirmed.
Nash v. Stanley, 168 Miss. 691, 152 So. 294; Silver Creek Co. v. Hutchens, 168 Miss. 757, 151 So. 559; Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7; Kimbrough v. Smith, 201 Miss. 202, 28 So.2d 850; Ellis v. S. Pellegrinni, Inc., 163 Miss. 385, 141 So. 273.
See also Davis v. Davis, 62 Miss. 818; Hays v. Barlow, 98 Miss. 487, 54 So. 2; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; Kersh v. Lyons, 195 Miss. 598, 15 So.2d 768; Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Mississippi State Highway Department v. Meador, 184 Miss. 381, 186 So. 642; Gulf, M. N.R. Co. v. Willis, 171 Miss. 732, 158 So. 551; Mississippi Cent. R. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Code of 1942, Secs. 1286, 1310; Griffith's Mississippi Chancery Practice, Secs. 443-447.
H.H. Parker and Williams Williams, all of Poplarville, for appellee, on motion to correct judgment.
Appellee is entitled to the 5 percent damages provided by Section 1971 and 1972 of Code of 1942.
Huckaby v. Jenkins, 154 Miss. 378, 122 So. 487; Humphreys v. Thompson (Miss.), 130 So. 152-153; McBride v. Burgin 143 Miss. 596, 108 So. 811; Hodges v. Jones, 197 Miss. 107, 19 So.2d 917; Firestone Tire Rubber Co. v. Fried, 202 Miss. 370, 31 So.2d 116; Sartin v. Barlow ex rel. Smith, 196 Miss. 159, 16 So.2d 372.
Jones Ray, of Jackson, and Stevens Calhoun, of Hattiesburg, for appellant, on motion to correct judgment.
Appellee is not entitled to the 5 percent damages provided for by Sections 1971 and 1972 of the Code of 1942.
City of Hattiesburg v. New Orleans N.E.R. Co., 141 Miss. 497, 108 So. 799; Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127; Sample v. Romine, 193 Miss. 706, 10 So.2d 346; Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556; Wilson v. Hansboro, 99 Miss. 252, 54 So. 845; Barber v. City of Biloxi, 76 Miss. 578, 25 So. 298; Sagory v. Bayles, 13 Smedes M. 153; Cole v. Miller, 32 Miss. 89.
The appellee seeks, by a bill in equity, to recover the possession of a building operated as a hotel by the appellant, of the furniture and equipment thereof, and for damages to the furniture therefore in the building, alleged to have been destroyed or damaged by the appellant. The court below awarded the appellee the possession of the furniture therein, and appointed a master to make and state an account of the appellee's damages, alleged to have been suffered by the destruction of, and damage to, the furniture in the building owned by the appellee.
In June 1931, the then owner of the building, which was being operated as a hotel, leased it to T.L. Claughton for a period of three years, ending on July 1, 1934, at an agreed monthly rental. Claughton, the lessee, agreed "to keep, replace and maintain during the term of this lease all furniture, fixtures, equipment, utensils, etc., including linens, shades, kitchen and dining room equipment, in substantially the same grade, quality, and kind wherever the same may be replaced and at the expiration of this lease to deliver up and return the same to the party of the first part." The agreed rental was $250 per month, but was afterwards by a verbal agreement reduced to $150 per month. Claughton operated the hotel until about August 1, 1941, when according to the evidence for the appellee, he requested the president of the Goodyear Yellow Pine Lumber Company, the then owner of the building, to execute to him a new lease to the building. The president of the Company, L.O. Crosby, declined this request, stating that the owners of the building desired to sell it but that Claughton could continue to operate it in accordance with the original lease except on a month-to-month basis, to which Claughton agreed, as to which there is no conflict in the evidence. The appellee objected to this evidence in the court below, but did not assign its admission as error. Thereafter Claughton continued to operate the hotel until his death in February 1944, after which his widow, Mrs. T.L. Claughton, the appellant, continued to operate it, according to the evidence for the appellee, pursuant to an agreement by her with the Goodyear Yellow Pine Lumber Company, on a month-to-month basis. She denied entering into this agreement and claimed that she was operating the hotel as a holdover tenant under the original lease to her husband in 1931, to which she claimed to have succeed by virtue of being one of his heirs, — at least, that is the way we understand her claim.
On July 16, 1946, the appellee notified the appellant, in writing, that her tenancy of the building would terminate on the 31st day of that month, and requested that she surrender to him possession thereof, together with its furniture, fixtures, and equipment. She declined to do this, and this suit was then begun by the appellant.
A demurrer to the bill of complaint was overruled. Whether this ruling was right or wrong, as to which we express no opinion, is immaterial under Section 147 of the Constitution unless we should reverse the decree of the court below for some other reason.
The court below, as it had the right to do, accepted the evidence for the appellee hereinbefore referred to as true and, therefore, its decree is supported by the evidence and must be affirmed.
Complaint is made that the case was prematurely tried over the objection of the appellant, but this complaint is without substantial merit and we shall not pause to set it forth in detail. Moreover, no sort of harm resulted to the appellant on the overruling of her request to pass the case to a later date.
A number of other interesting questions are presented in the briefs of counsel, but which disappear in the presence of the two agreements that the tenancy here was from month to month, which the court below accepted as having been made.
Affirmed and remanded.
This is a suit by the appellee, the owner of a building used by the appellant as a hotel, to recover possession of it and certain designated furniture and hotel equipment therein from the appellant, whose defense was that she was entitled to retain possession of all of this property as a tenant under an unexpired lease thereof. The appellant failed to substantiate this claim and possession of the property was awarded the appellee. This decree was affirmed by this Court, Claughton v. Ford, 30 So.2d 805, prior to the adjournment of a former term thereof. Our judgment failed to award the appellee the statutory damages for appealing the case permitted by Sections 1971 and 1972, Code 1942, and the appellee now requests us to correct the judgment then rendered so as to award him this damage, and, as the value of the property does not appear in the record, to remand the case to the Court below for the ascertainment thereof.
The appellant raises two objections to this motion (1) this Court lost its power to correct this judgment when it adjourned for the term at which the judgment was rendered, and (2) to allow this statutory damage would be to allow double damages.
This Court has uniformly held since the decision in October 1877 of the case of Cotton v. McGehee, 54 Miss. 621, that power to correct an error in the record of a judgment rendered by it at a former term so as to make the record thereof conform to the judgment it rendered is inherent in every court of record. This question was thoroughly discussed and pertinent authorities cited in Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845, Ann. Cas. 1913E, 345.
It is true that in the case at bar the opinion rendered when it was decided makes no reference to an award of this damage, and we will assume, as is usually the case, that no oral reference was then made to it from the bench, but neither was necessary. It is mandatory on the Court to include this statutory damage in its judgments of this character and it is always done by its Clerk in recording the judgment unless omitted by him through mistake. It must, therefore, be considered to have been included in the judgment rendered when the case was decided.
The appellant's double damage claim is based on the theory that the double rent allowed a landlord against a tenant holding over is the sole measure of the landlord's damage therefor and excludes the award of this statutory damage. In this the appellant is in error. The damage allowed by Sections 1971 and 1972, Code 1942, is recoverable only in this Court and has no bearing on the amount of the recovery by a litigant in the courts below.
The measure here of this statutory damage is not the value of the property, the possession of which was awarded the appellee, for "the interest in it which is in controversy" is that only claimed by the appellant as a tenant thereof, the value of which only is necessary to be ascertained in order to measure the damage to be here allowed. McKeithen et al. v. Bush, 201 Miss. 664, 30 So.2d 83; Firestone Tire Rubber Co. v. Fried, 202 Miss. 370, 32 So.2d 454. Consequently, the motion will not be allowed for damages on the value of the property, McKeithen et al. v. Bush, supra, but only on the interest therein here in controversy, to which extent this motion will be sustained, and the case remanded for the ascertainment of that value. In McKeithen et al. v. Bush, supra, where an appellee requested the court by a motion to allow him statutory damages on the value of the land involved but was entitled only to the value of the interest therein in controversy, his request was denied and his motion was overruled. That case will not be here followed and insofar as it denied the appellee statutory damage on the value of the interest in the property involved it will be overruled. Whether the appellee there should be allowed damages on the interest in the property in controversy was not called to the attention of the Court nor discussed in the opinion. It was simply overlooked by both Court and counsel.
Motion sustained in part.