Gilluly v. Hawkins

Mount, J. This is an action in unlawful detainer, based upon the failure of the defendant to vacate certain premises after twenty days’ notice terminating* his tenancy. Plaintiff, on the 23d day of August, 1918, filed his complaint, alleging that he was the owner of the property ; that the defendant was in possession as a tenant, the tenancy being one from month to month with a stipulated monthly rental; that the monthly tenancy terminated on the 21st day of each and every calendar month; that, on the first day of August, 1918, plaintiff caused to be served upon the defendant a notice terminating his tenancy on the 21st day of August and requiring the defendant to deliver possession of the [80] premises to the plaintiff; and that the defendant failed and refused to comply with the notice and unlawfully withholds possession of the premises from the plaintiff. Upon the filing of this complaint, a writ of restitution was issued, and thereafter, on August 31st, the defendant appeared in the action and' filed a motion to vacate and set aside the writ of restitution for the reason that the defendant was dependent upon a son who was a soldier in the military service of the United States, and that the agreed rent did not exceed fifty dollars ($50) per month. This motion was based upon an affidavit stating, in substance, that the defendant was the father of a soldier engaged in the military service of the United States; that he was wholly dependent upon the support he received from that soldier; that he was occupying the premises as a residence at a rental of eight dollars ($8) per month; and upon the further ground that the tenancy was an oral tenancy for the period of one year and not from month to month. This motion came on to be heard, and the court suspended the writ of restitution until the final hearing of the case. Thereafter an answer was filed which set up substantially the facts stated in the affidavit, and a reply was filed to. the answer. The case came on for trial on December 17, 1918. At the trial, the court found that the tenancy was one from month to month; that a notice to quit was properly served on the first day of August, 1918, requiring the defendant to deliver possession to the plaintiff; and entered a judgment as prayed for in the complaint. The defendant has appealed from that judgment. He relies upon the provisions of the act of Congress entitled: “An act to extend protection to the civil rights of members of the Military and Naval Establishments of the United .States engaged in the present war,” [81] approved March 8, 1918, subd. 1, of § 302, of which provides: “That no eviction or distress shall be made during the period of military service in respect of any premises for which the agreed rent does not exceed $50 per month, occupied chiefly for dwelling purposes by the wife, children, or other dependents of a person in milk tary service, except upon leave of court granted upon application therefor or granted in an action or proceeding affecting the right of possession.” Subdivision 2 of this section provides: “On any such application or in any such action the court may, in its discretion, on its own motion, and shall, on application, unless in the opinion of the court the ability of the tenant to pay the agreed rent is not materially affected by reason of such military service, stay the proceedings for not longer than three months, as provided in this act, or it may make such other order as may be just.” Federal Statutes Annotated (2d ed.), Supplement 1918, p. 816. If we may concede that the appellant is a dependent of a person in the military service, as provided in that act, it is apparent that the act leaves it to the discretion of the court to grant the relief prayed for in the complaint. In this case the trial court exercised that discretion and suspended the writ of restitution for a period of more than three months, and then, upon the trial of the case, concluded that the writ should issue. We think it is plain from the terms of the act itself that the court was justified in so doing. It is also argued that the tenancy here created was a tenancy for one year. There was a conflict of the evidence upon this point. The court found that the tenancy was from month to month only. There is abundant evidence in the record to justify this finding. In fact, we are convinced that any other finding would have been against the weight of the evidence. [82] We find no error, and the ¡judgment is therefore affirmed. Holcomb, C. J., Parker, Fullerton, and Bridges, JJ., concur.