Donoghue v. Kremmel

PRESTON, P. J.

The action was commenced to recover possession of a certain real property operated as a mine, plaintiff claiming possession by virtue of the terms of a written lease from the owner Kremmel, one of the defendants.

In the complaint plaintiff sought damages for withholding in addition to his demand for possession. At the trial, however, all claims were abandoned other than the one for possession. The ownership in fee of the premises is admittedly in Kremmel and the execution and delivery of the lease to plaintiff is likewise conceded.

It is the contention of appellants here that respondent breached the terms of the lease and abandoned the property, whereupon Kremmel leased the premises to the co-defendant Wilson.

Further, appellant contends that there was no ouster upon which could be predicated this action in ejectment. The case was tried by a jury and it was stipulated that the only issue submitted was that of possession and restitution. A verdict was returned in favor of plaintiff and thereafter judgment was entered ordering that plaintiff be restored to possession of the premises.

The record before us is hardly satisfactory inasmuch as respondent has not seen fit to aid by the presentation of any brief or memorandum of authorities in support of the

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judgment. Yet we are mindful of the rights of the litigant and, therefore, take the burden thus shifted by counsel. We may add that the bench and bar are co-ordinating agencies in the administration of justice and it must be admitted, notwithstanding what theories in the abstract may obtain, that when either trial or reviewing courts must operate without the aid of the bar, the net result may be anticipated as an abandonment of rule and order and a departure from any system that might even approach the necessities of a balanced jurisprudence.

Going over the record before us in detail, we find sufficient evidence to support the conclusion that there was no breach of the terms of the lease.

It is not denied that plaintiff entered upon the premises under the terms of the lease; that thereafter and with the consent of the lessor an executory agreement of sale was entered into whereby the lessee permitted possession in a cotenant. The claim of appellant is that this cotenant, holding and working the mine under the terms of the lease, was delinquent in performance of the work required.