Obermeyer v. Kendall

T. BAILEY LEE, Commissioner. — Plaintiff, appellant here, filed his suit in unlawful detainer in the probate [286] court of Gem county, on January 27, 1921. He claimed that in May, 1920, he employed the defendant to go upon the premises involved for an indefinite period and farm and manage the same, and that as part of the compensation agreed upon defendant and his family were to occupy and use the residence and buildings thereon; that thereafter on January 10, 1921, he terminated the said contract of employment and directed defendant to vacate the premises, which defendant refused to do; that on January 14th following he caused to be served upon the defendant a written notice demanding that defendant vacate the premises and yield plaintiff possession thereof within three days from date of service, but that the defendant continued wrongfully and unlawfully to withhold them. He asked for restitution of the premises and pleaded no damages. On March 11, 1921, the defendant answered, specifically denying plaintiff’s allegations, and setting up what is denominated a “further and separate answer and defense,” upon which he demanded judgment in the sum of $303 and interest claimed to be due him as wages for the months of December, 1920, and January and February and eleven days of March, 1921. The record is silent, but evidently a judgment was entered either upon a verdict or by the court, and an appeal taken by one of the parties to the district court of Gem county. The case coming on for trial, the defendant was permitted over plaintiff’s objection, to amend his separate defense by increasing the sum originally sued for to $500, and fixing the period covered as “December, January, February, March, April and May, 1921,” December, 1920, having obviously been intended. In the absence of any assistance from the record, it becomes necessary to speculate as to what then happened. Possibly, it had developed that the defendant had vacated the premises, or plaintiff may have abandoned his case. This much appears; [287] “Mr. Huebener: Now, then, the question arises: who is to take the affirmative in this case. I took the matter up with Mr. Church this morning, and he said that he would leave that up to the court. “Court: There is no issue here except that made in the affirmative answer? “Mr. Church: I presume that is all. “Court: Then I don’t see — you must take the initiative some time in the trial, and, if there is no issue except that raised in your affirmative matter, you may as well proceed with the initiative on the trial. “Mr. Church: Very well.” The defendant introduced his evidence and rested. Plaintiff moved for a nonsuit which was overruled. He then presented his ease, and after some rebuttal the cause went to- the jury, under the court’s instructions upon the sole issue of wages. Verdict was returned in favor of the defendant in the sum of $305. Judgment was entered that the plaintiff “have and recover nothing from the defendant, and that the defendant do have and recover from plaintiff,” the sum stated with costs. Plaintiff has appealed, assigning as error the court’s allowance of the amendment, denial of nonsuit, and entry of judgment. The amendment injected into the ease entirely new causes of action, several of which had not arisen when defendant’s answer was filed. On a trial de novo, the issues cannot be changed, as by setting up a new .cause of action, but the case must be tried in the appellate court upon the issues that were presented in the court below. (29 Cyc. 724; People v. El Dorado County Court, 10 Cal. 19; Estate of McVay, 14 Ida. 64, 93 Pac. 31.) And it is not permissible to amend or file new pleadings by which a new cause of action is introduced. It has often been held that an item of damages may be added by amendment when it would be suppoz’ted by the cause of action originally plead, but the weight of authority prohibits the introduction of anything not so supported. It would hardly be said that plaintiff’s failure to pay wages [288] in December or January could serve as a basis for claims arising for work done in April and May. ‘The ruling was erroneous. Plaintiff based Ms motion for nonsuit upon the ground that, the action being one of unlawful detainer, defendant’s counter demand for wages due constituted no defense, and could not be litigated. The defendant while practically admitting the rule seeks to avoid its application by contending that the suit is not one of unlawful detainer. In this he is clearly wrong. To determine the nature of an action one looks to the complaint and assumes its allegations to be true. It is plead that the defendant was in possession under contract of employment; that the contract was terminated and that defendant refused to vacate when required to do so. Such allegations plead a tenancy at sufferance. (Snedaker v. Powell, 32 Kan. 396, 4 Pac. 869; Eichengreen v. Appel, 44 Ill. App. 19; People v. Annis, 45 Barb. (N. Y.) 304.) In an action of unlawful detainer, the right to possession is the sole issue, and neither counterclaim nor cross-complaints may be entertained. (Hunter v. Porter, 10 Ida. 72, 77 Pac. 434; Wolter v. Dixon, 29 Ida. 26, 157 Pac. 250.) Defendant’s separate and affirmative defense was purely a cross-complaint, irrespective of what he termed it. The motion for nonsuit should have been sustained. Coming to the judgment, plaintiff insists that it should be reversed in its entirety. Here, he is wrong. His cause had not been dismissed; it was still before the court; he had offered no evidence to maintain it, and the trial court could have done nothing less than award judgment against Mm on his complaint. The judgment should be reversed as to the wage award and the trial court instructed to modify it accordingly. In all other respects the judgment should be affirmed. Budge, C. J., concurs. McCarthy, Dunn and Wm. E. Lee, JJ., concur in the conclusion reached. [289] PER CURIAM. — The foregoing is hereby approved as the opinion of the court. It is ordered that the judgment be reversed as to the wage award, and that the trial court be directed to modify the judgment accordingly. In all other respects the judgment is affirmed. No costs are awarded.