Opinion
No. 6545.
Decided October 20, 1942.
1. LANDLORD AND TENANT. In landlord's action against tenant to recover possession of leased premises, with treble damages for unlawful detainer, mere fact that defendant's demurrer to complaint required court to interpret parties' written contract, copy of which was attached to complaint, to ascertain whether plaintiff could lawfully tender unpaid balance of money due defendant for improvements on premises and demand surrender of possession thereof, or whether defendant was entitled to remain in possession as tenant until rentals offset improvements, did not change action from one of unlawful detainer. 2. LANDLORD AND TENANT. The Supreme Court, in ruling on motion to dismiss appeal from judgment dismissing landlord's unlawful detainer action against tenant because of failure to take appeal within ten days, need not construe parties' written agreement, copy of which was attached to complaint, for purpose of ascertaining whether plaintiff could lawfully tender unpaid balance of money due defendant for improvements and demand surrender of possession of leased premises before rentals for use and occupation offset improvements. Rev. St. 1933, 104-60-14.
See 36 C.J. Landlord Tenant, sec. 1796; 32 Am. Jur., 855.
Appeal from District Court, First District, Rich County; M.M. Morrison, Judge.
Action of unlawful detainer by Nettie W. Madsen against Nick Chournos. From a judgment of dismissal, plaintiff appeals. On respondent's motion to dismiss the appeal.
Appeal dismissed.
M.C. Harris, of Logan, and Maurice Harding, of Provo, for appellant.
Thatcher Young, of Ogden, for respondent.
Respondent filed a motion in this court to dismiss the appeal on the ground that the action is an unlawful detainer proceeding and that the appeal from the judgment of dismissal was not taken within ten days as required by Section 104-60-14, R.S.U. 1933. An examination of the complaint indicates that the relief sought is possession of the premises together with treble damages for alleged unlawful detainer. A copy of the written contract between the parties is attached to the complaint, but it merely serves to indicate how the tenancy of defendant arose and to set forth the theory of plaintiff that she could terminate the tenancy by paying to defendant the balance of the indebtedness.
There was a demurrer to the complaint interposed by defendant, which required the court to construe the written instrument to ascertain whether or not plaintiff might be entitled to the relief sought or any other relief. The mere fact that the court would be required to interpret the written 1 agreement to ascertain whether or not plaintiff could lawfully tender the unpaid balance of the money to defendant and demand surrender of possession of the land, or whether defendant was entitled to remain in possession as a tenant until the rentals for use and occupation had offset the improvements for which the indebtedness arose, would not change the action from one of unlawful detainer. In sustaining the demurrer the trial court correctly ruled that the action was an unlawful detainer proceeding, irrespective of whether or not the lower court was right in holding that the written agreement did not give plaintiff the right to pay the balance of the indebtedness and to recover possession.
In ruling on the motion for dismissal of this appeal, we are not called upon to construe the written agreement. The lower court dismissed the action because plaintiff failed to amend within the time allowed. The appeal was taken from the judgment of dismissal, and it should have been taken 2 within the period of ten days. If the plaintiff desires this court to construe such written agreement in any subsequent action, it will be necessary for the appeal from any adverse judgment to be taken within the time required by statute. The appeal in this case is therefore dismissed.