Toal v. Clapp

Cassoday, J. "Was tbe plaintiff lawfully imprisoned on tbe judgment and execution for costs in tbe unlawful de-tainer suit? His tenancy ended and was terminated March 31, 1883, by notice given in accordance with tbe stipulation contained in tbe lease under which be had up to that time held tbe possession. By tbe same notice be was required to deliver tbe possession of tbe premises to Mrs. Gla^p on that day. He held over and refused to so deliver. Of course sucb bolding over was not under the lease, for that bad been terminated, and tbe plaintiff no longer had any right under it. Sucb bolding over, therefore, was without any authority from Mrs. Glayop and contrary to tbe notice and demand made by her upon him. Sucb being tbe condition of things, did tbe statutes authorize bis removal without other or further notice? They expressly declare that “ any tenant or lessee ... for any part of a year . . . of any real property . . . may be removed therefrom . . . (1) when sucb person bolds possession after tbe expiration of tbe term by lapse of time . . . and without tbe permission of tbe landlord.” Sec. 3358, R. S. Here, upon tbe notice being given as provided by tbe express stipulation in tbe lease, tbe term expired by lapse of time, March 31, 1883, and tbe bolding over thereafter was con [226] fessedly without permission of Mrs. Clapp. The time of the expiration of the lease was uncertain until the notice was given, when it became fixed and certain. The contract thereupon became the same, in effect, as though it had been in writing expressly providing that it should terminate or expire at the time named. Under such a lease both parties would necessarily know the day on which it would expire by lapse of time. Knowing the fact, there would be no necessity of being notified of it, and the statute quoted did not require it. Under the second and third subdivisions of the same section, where the proceeding is after default in the payment of rent, or where the tenant holds over without permission, contrary to some condition or covenant in the lease, it is otherwise, and hence in such cases a three days’ notice must be given. But neither of those subdivisions have any application to a case where the expiration of the term is by lapse of time. This, as we have seen, after the notice was given, was such a case. This being so, such holding over clearly came within the language of the statutes quoted, and hence the plaintiff was liable to be removed from the premises without other or further notice. This gave Mrs. Clapp the right to such judgment of restitution as the statutes authorized the justice to render in such a case. The statutes expressly declare that “ if upon the trial of cmy such action the justice . . . find the defendant . . . guilty of the allegations in the complaint, the justice shall thereupon enter judgment for the plaintiff to have restitution of the premises, and tax the costs for the plaintiff . . . against such defendant. . . . Such justice shall issue execution in favor of the plaintiff for such costs as in oilier actions in tort, and also issue a writ of restitution.” Sec. 3366, B. S. It is claimed that this section only applies to cases mentioned in sec. 3360, in which there have been an “unlawful or forcible entry a/nd” detention. But it is the only section regulating the entry of judgment under that chapter. Besides, it expressly provides that [227] “when the action is brought under the provisions of sec. 3360,” the justice “ shall impose a fine,” etc., and then provides for the collection of such fine. From this it appears, by necessary implication, that the section does apply to a class of cases not coming under sec. 3360, and in which no fine can be imposed, for the reason that there has been no “unlawful or forcible entry and” detention, but only an “ unlawful detainer,” as in the case before us. But an “ unlawful detainer ” is necessarily tortious, and hence the provision that “ such justice shall issue execution in favor of the plaintiff for suoh costs as in other actions in tort.” In such other actions in tort “an execution may be issued against the person of the defendant when the action in which judgment is rendered is founded on tort, or is for a penalty,” etc. Sec. 3681, K. S. That such “ unlawful de-tainer ” is tortious is manifest from the fact that it subjects a party to treble damages when, as here, the action is not “brought for the nonpayment of rent.” Sec. 3367, E. S. That this provision giving treble damages “ is penal in its nature” there can be no question. Chase v. Dearborn, 23 Wis. 445. The action was for “unlawful detainer,” and made tortious by express statutes, and hence the plaintiff was not “ imprisoned for debt arising out of or founded on a contract, express or implied,” within the meaning of sec. 16, art. I, Const, of Wis. This is so clearly established by the authorities as to require no discussion. Howland v. Needham, 10 Wis. 495; In re Mowry, 12 Wis. 53; Cotton v. Sharpstein, 14 Wis. 226; In re Kindling, 39 Wis. 60; Baker v. State, 54 Wis. 378; In re Milburn, 59 Wis. 30 et seg.; In re Burrows, 33 Kan. 675. The view we have taken of the question considered renders it unnecessary to consider the others, so thoroughly discussed by counsel, as they are each dependent upon the one already determined. By the Court.— The judgment of the circuit court is affirmed.