Ballerino v. Bigelow

Foote, C. — Ballerino brought this action against Mrs. Bigelow, claiming that she had forcibly deprived him of the possession of certain premises, and in pursuance of' such forcible entry unlawfully detains the same from him. . -

[501]The damages claimed was the sum of two hundred dollars, and it is also alleged in the complaint that the rental value of the premises did not exceed twenty-five dollars per month.

The cause was originally brought in a justice’s court, and judgment being rendered for the plaintiff, an appeal was taken upon the law and facts to the superior court of the proper county. There a trial was had de novo, and judgment was rendered for the plaintiff, that he recover the premises and $510 as damages, that being treble the amount of the damages sustained, which judgment for damages was awarded in accordance with the provisions of section 1174 of the Code of Civil Procedure. From this judgment, and an order denying a new trial, this appeal is taken.

There are several points made for the reversal of the judgment and order, but it becomes necessary to determine but one, which, as we think, is conclusive of the matter.

While the complaint only alleges that the rental value did not exceed, as a fact, the sum of twenty-five dollars a month, the overwhelming weight of the evidence is that the rental value exceeded that sum. The court below disregarded the weight of evidence, not upon the idea that there was a conflict, in which it believed the plaintiff’s evidence upon the point, but upon the theory that it was legally concluded by the allegations of the complaint as determining the question of the jurisdiction of the justice’s court to try and render judgment in the cause, and that it was not bound to determine the question of jurisdiction in accordance with the evidence. This was clearly error. Says the judge below: “ Concerning the value of the rents, if it had not been for the allegations of the complaint, I should have found in this case, where the defendant herself is evidently anxious that the value should be put above the amount claimed, that it is more. But I think the same rule of [502]pleading governs in this case as in any other; that the plaintiff cannot recover any more than he alleges, although the defendant seems perfectly willing that the plaintiff should consider the rental value to be greater than the amount claimed.”