Opinion
No. 36134.
June 10, 1946. Suggestion of Error Overruled July 25, 1946.
1. LANDLORD AND TENANT.
In action of unlawful entry and detainer, where county court awarded landlord double rent for premises to be computed until surrender of premises, circuit court, on appeal, properly modified the county court's judgment so as to make it conform to judgment which county court should have rendered and was not required to remand the case to its own docket for a new trial (Code 1942, secs. 1616, 1962).
2. LANDLORD AND TENANT.
In action of unlawful entry and detainer by landlord against tenant, landlord was entitled to a judgment for double rent for only that which had accrued prior to rendition of judgment and any that might accrue thereafter would have to be collected in another action.
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
T.J. Wills, of Hattiesburg, for appellant.
The entry of a judgment modifying a continuing judgment entered under the Landlord and Tenant Statute so as to conform to the necessary provisions of the judgment under the Unlawful Entry and Detainer Statute was a correction of a prejudicial error. The statute provides that if a prejudicial error is found the court shall reverse and shall enter judgment as are entered in reversals by the Supreme Court.
Peebles v. Miles, 189 Miss. 623, 198 So. 29; Code of 1942, Sec. 1616.
Dudley W. Conner, of Hattiesburg, for appellee.
When a question is one of fact, the verdict of the jury is conclusive, unless clearly contrary to or unsupported by the evidence.
Mann v. Manning, 12 Smedes M. (20 Miss.) 615; Garrison et al. v. Dennis (Miss.), 7 So.2d 517; Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273.
We submit that it was not error for the trial court to render a continuing judgment as long as the tenant should continue in possession, and, if error was committed by the circuit court, it was error committed against the interest of the appellee and in favor of the appellants. Thus, it could not be a prejudicial error contemplated by Section 1616 of the Code of 1942 in dealing with appeals from the county court to the circuit court.
Ellison v. Landry et al., 199 Miss. 161, 24 So.2d 319; Davis et al. v. Dantzler Lumber Co., 126 Miss. 812, 89 So. 148; Ellis v. S. Pellegrini, Inc., supra; Code of 1942, Secs. 947, 1054.
Argued orally by T.J. Wills, for appellant, and by Dudley W. Conner, for appellee.
This is an action of unlawful entry and detainer begun by the appellee in the county court. The appellee obtained a judgment in that court, awarding him, among other things, double rent for the premises "to be computed from and after May 31, 1945, until possession of said premises is surrendered by said defendants to the plaintiff." The circuit court, on the appeal thereto, affirmed the judgment of the county court, after striking therefrom the above-quoted language and substituting therefor a judgment for the appellee for double rent "in the sum of $250," from which judgment the tenant appeals.
The record does not contain an assignment of error in the court below, and the appellant's only complaint here is that the court below, instead of modifying the county court's judgment so as to make it conform to the judgment which that court should have rendered, should have rendered the judgment and remanded the case to its own docket for a new trial. Assuming that the double rent judgment rendered by the court below is for the correct amount, and no challenge thereof appears in the appellant's brief, the procedure followed by the court below conforms to its governing statute, Section 1616, Code of 1942, which provides that on an appeal from the county court to the circuit court: "If prejudicial error be found the court shall reverse and shall enter judgment or decree in the manner and against like parties and with like penalties as is provided in reversals in the supreme court; provided that if a new trial is granted the cause shall be remanded to the docket of such circuit or chancery court and a new trial be had therein de novo." Section 1962 of the Code, which governs appeals to the Supreme Court, provides that: ". . . in case the judgment, sentence, or decree of the court below be reversed, the Supreme Court shall render such judgment, sentence, or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain; in either of which cases the suit, action or prosecution shall be remanded for a final decision; . . ." The appellant's complaint here presents no question of fact for decision. The appellee was entitled in the county court to a judgment for double rent for only that which had accrued prior to the rendition of the judgment. Any such that might accrue thereafter would have to be collected in another action. The court below therefore committed no error in the modification made by it in the county court's judgment.
Affirmed.