Board of Public Service Commissioners v. Spear

CRAIG, J.

The only question raised upon this appeal is whether or not the trial court had discretion under the facts presented to render a judgment against a tenant holding over for rental only, without trebling the amount. Respondent purchased certain premises of which appellant held possession under a verbal agreement which respondent alleged was a tenancy from month to month, and served upon him a thirty-day notice to vacate; upon his failure to do so, it served the statutory three-day notice, and subsequently brought this action for possession of the premises and treble rents. Appellant’s answer alleged that he was in possession under a parol lease for one year, and that his term had not expired. The findings of the trial court were in favor of the owner for all demands, and among other things recited:

“The court having found that the defendant willfully held over the premises involved in this action after demand made and one month’s notice in writing given requiring the possession thereof, now finds that such willful holding over was deliberate, intentional and obstinate, with knowledge that the tenancy was terminated and that defendant was holding over without and against the consent of the landlord, and that by reason thereof the plaintiff, as a matter of law, is entitled to have judgment for treble rent during the time the defendant continued in possession after such notice; but the court in so finding and in ordering judgment for treble damages, is not doing so in the exercise of its discretion, but because it is of the opinion that it cannot under the law exercise any discretion in the premises, and is compelled under the law to give judgment for treble damages. ’ ’

Appellant’s contention is that section 1174 of the Code of Civil Procedure afforded the court discretion to enter judgment for the rent due, or for treble such amount, basing his argument upon the following provision thereof:

[216]

" Judgment against the defendant guilty of the forcible entry, or forcible or unlawful detainer may be entered in the discretion of the court either for the amount of tire damages and rent found due, or for three times the amount so found.”

Section 735 of the Code of Civil Procedure also provides that: