Holland v. Eastern Outfitting Co.

HALL, J.

This is an appeal by defendant from a judgment and an order denying its motion for a new trial, but the only matter urged for a reversal relates to the action of the court in overruling defendant’s demurrer to the complaint

[442]

for a misjoinder of causes of action. Since the appeal was taken to this court the plaintiff has died, and the special administrator of her estate, Patrick Holland, has been substituted as plaintiff.

The complaint is in form in three counts, and was filed May 6, 1909.

The first count sets up a cause of action in unlawful detainer, after default in the payment of rent and three days’ notice in writing requiring its payment or possession of the premises. The notice was served March 6,- 1909, and demanded the payment of the month’s rental falling due February 15, 1909, amounting to $250.

The second count, by reference and adoption, repeated the allegations of the first count, and in addition alleged the demand for and nonpayment of the month’s rental, in the sum of $250, falling due March 15, 1909.

The third count was in all respects similar to the second count, except that it alleged the demand for and nonpayment of the month’s rental $250, falling due April 15, 1909.

The action was not tried until September, 1909, when judgment was rendered in accordance with the verdict of the jury for $1,000, but without any rents or damages being trebled, and without any judgment for restitution of premises, for (as was stated at the oral argument) the parties, since the commencement of the action, had entered into a new lease of the premises.

The demurrer was upon the ground that there was a misjoinder of causes of action in this, that a cause of action in unlawful detainer set forth in the first count was joined with a cause of action in debt for rent due and unpaid, set forth in the second and third counts of the complaint.

We do not regard the complaint as setting out more than one cause of action, to wit, an action in unlawful detainer.

When the three days’ notice was served there was but one month’s rent due, to wit, the rent for the month beginning February 15, 1909. Upon the expiration of the three days without payment of the rent due and demanded, or the surrender of possession of the premises, the further detention thereof became unlawful, and for such an unlawful detention the plaintiff would be entitled to a judgment for the restitution of the premises and the rent due and unpaid at the time