Schumann Piano Co. v. Mark

Mr. Justice Scott delivered the opinion of the court: Appellant refused to pay the rent due July 1, 1901, which was the rent for the ensuing month, for the reason that it claimed a larger amount due from the landlord on account of the failure of the landlord to furnish heat as provided by the lease. It is conceded by appellant that in this suit for forcible detainer it cannot successfully defend by showing that such damages exceeded the amount of rent due, but it is contended that appel-. lees could not maintain this suit for the premises involved herein, for the reason that on the same day that this suit was begun another suit in forcible detainer was begun by appellees against appellant before the same justice of the peace for other premises demised to appellant by a separate lease, the contention being, that one suit should have been brought for the possession of all the real estate described in both complaints, and that as the real estate involved in this suit was not included in the complaint in the other suit, this suit cannot be maintained. The statute relied upon by appellant in this regard is section 53 of chapter -79 of Hurd’s Revised Statutes of 1901, (p. 1116,) which is as follows: “In all actions which shall be commenced before a justice of the peace, each party shall bring forward all his demands against the other, existing at the time of the commencement of the action, which are of such a nature as to be consolidated, and which do not exceed $200 when consolidated into one action or defense; and on refusing or neglecting to do so, shall forever be debarred from suing therefor,” and it is argued that under this statute appellees’ causes of action in forcible detainer should have been consolidated. This section of the statute does not apply to proceedings under the act in reference to forcible entry and detainer. This construction is shown to be correct by the fact that the plaintiff is required to consolidate only such demands “as do not exceed $200 when consolidated into one action or defense.” In suits under the forcible entry and detainer act the jurisdiction of the justice is not affected by the amount involved, and it is therefore apparent that a statute requiring the consolidation of demands which, when consolidated, do not exceed a certain amount, could not apply to rights of action, accruing under a statute, on which suits may be brought before a justice of the peace without reference to the amount involved. If it had been intended to require the consolidation of actions of this character, that intention would have been evinced by a statute on the subject containing no monetary limitation. It is then urged that as the appellees had brought a suit in assumpsit for the July rent, they could not forfeit the lease and maintain a suit for the possession of the real estate prior to August 1, 1901, for the reason that the beginning of a suit for 'the July rent is inconsistent with the act of appellees in terminating the tenancy prior to the expiration of the month of July. It is said that the suit in assumpsit and the proceeding under the forcible entry and detainer statute are inconsistent remedies for the enforcement of the same rig'ht, and that having elected to first sue in assumpsit, the plaintiff can not afterwards, during the period covered by the rents sued for, terminate the lease and sue for possession. This is a misapprehension of the situation. The landlord has two rights: one is, to have the rent that is due paid; the other is, where the rent has not been paid, to proceed under the statute and obtain possession, if the rent be not paid within the time-fixed by the notice which the landlord is authorized to give by section 8 of chapter 80 of Hurd’s Revised Statutes of 1901, page 1135. If before the expiration of that notice the rent is paid, any further proceedings for the possession are barred; but no attempt to collect the rent by a suit in assumpsit will bar the suit for possession unless the rent be actually paid within the time limited by the notice. A pending action for use and occupation will not invalidate a notice of the termination of the lease, for the landlord may only recover in his action for rent due mt the time of the expiration of the notice, although he may claim rent to a later period. (Taylor on Landlord and. Tenant, sec. 485.) The language quoted from Lord Coke in the case of Jackson v. Sheldon, 5 Cow. 457, also leads to the same conclusion. The judgment of the Appellate Court will be affirmed. Judgment affirmed.