Mertens v. Keene

WORKS, J.

This is an action of unlawful detainer. The complaint alleges two causes of action and judgment went for plaintiff under the allegations of the second of these. It is alleged in that count that on a certain day “plaintiff, as seller, and defendants as purchasers, entered into an agreement for the sale of” certain described real property; that on the same date “defendants entered into possession of said premises, and ever since have been, and now are, iff possession of said premises”; that “plaintiff has executed and performed all of the conditions precedent recited in said agreement by her to be performed”; that “on the 1st day of October, 1924, a payment in the sum of Fifty ($50.00) Dollars, by defendants to plaintiff, became due under said agreement, but that defendants failed, refused and neglected, and now fail, refuse and neglect, to make said payment to plaintiff, although repeated demands for the payment thereof have been made by plaintiff of defendants; and that subsequent to said 1st day of October,

[788]

1924, additional payments, in the total sum of Four Hundred Twenty-five ($425.00) Dollars, by defendants to plaintiff became due under said agreement, but that defendants have failed, refused and neglected, and now fail, refuse and neglect to make said additional payments to plaintiff, although repeated demands for the payment thereof have been made by plaintiff of defendants”; that defendants, by virtue of their failure, refusal and neglect to perform the covenants of said agreement,” as alleged in the language immediately preceding the present clause, “did, on the 1st day of October, 1924, abandon said agreement”; that “a reasonable rental value of said premises is the sum of Fifty ($50.00) Dollars per month”; and that “plaintiff has frequently, since said 1st day of October, 1924, demanded of defendants to quit and surrender to plaintiff said premises, but that defendants have failed, refused and neglected to so quit and surrender to plaintiff said premises.” The prayer of the complaint is for “the restitution of said premises”; for judgment for a certain sum “as damages for the unlawful detainer of said premises”; that “said damages be trebled”; and for costs. Upon this count of the complaint the clerk of the trial court issued a summons requiring defendants to answer within three days after the service thereof. The summons was served and defendants moved the court to quash the service on the ground that the complaint fails to state a cause of action in unlawful detainer and that therefore defendants were entitled to ten days within which to answer under the provisions of the statute regulating the matter of service of summons in ordinary civil actions. The motion was by the court denied. Defendants not having appeared in response to the summons, within the time limited thereby, their default was entered, and pursuant thereto judgment was rendered against them ordering a restitution of the premises described in the complaint, ordering the issuance of a writ of restitution, and giving judgment for damages for the detention of the premises. Defendants appeal from the judgment and from the order of the trial court denying their motion to quash the service of summons.