Stuller v. Sparks

The opinion of the court was delivered by Horton, C. J.: This was an action in the court below of forcible entry and detainer, brought by Sparks against Stuller, before a justice of the peace. Judgment was rendered by the justice awarding Sparks restitution of the premises. Stuller appealed to the district court. In that court Sparks again recovered judgment. Stuller complains of the rulings of the trial court, and of the judgment rendered against him. His complaint is well founded. Section 161 of procedure before justices of the peace provides: “ It shall be the duty of the party desiring to commence an action under this article, to notify the adverse party to leave the premises, for the possession of which the action is about to be brought, which notice shall be served at least three days before commencing the action, by leaving a written copy with [22] the defendant, or at his usual place of abode, if he cannot be found; such notice may also be served by leaving a copy thereof with some person over 12 years of age, on the premises described in the notice.” (Gen. Stat. of 1889, ¶ 5017.) Under the provisions of section 161, if three-days notice to leave the premises is not given, a plaintiff cannot maintain an action of forcible entry or detainer. (Nason v. Best, 17 Kas. 408; Conaway v. Gore, 22 id. 216; Douglass v. Whitaker, 32 id. 381.) As a three-days notice to leave is necessary to maintain the action, the plaintiff or complainant must show upon the trial that such a notice was given, before he can have judgment in his favor. The complaint alleged that on the 2d day of May, 1887, plaintiff delivered to the defendant a true copy of the notice attached, marked “Exhibit A.” This exhibit was a notice in due form, dated April 30, 1887, notifying the defendant to leave the premises described in the complaint, in accordance with the provisions of the statute. The record recites that “Exhibit A,” attached to plaintiff’s complaint, being the notice to quit, shown at page 4 of the case, was not offered in evidence, and no proof of service of the same upon the defendant at any time was offered or admitted. The answer of defendant contained a general denial of the allegations of the complaint. As no service of the notice to quit was shown, and as it was not admitted, the judgment was improperly rendered. It will be reversed, and the cause remanded for a new trial. All the Justices concurring.