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eBook details

• Title: Boucher v. St. George Et Al.
• Author : Supreme Court of Montana
• Release Date : January 19, 1930
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

Real Property ? Unlawful Detainer ? Tenancy at Will, from Month to Month ? Notice ? Complaint ? Insufficiency ? Justices Courts ? Jurisdiction ? Equity ? Offsetting Judgments ? Collateral Attacks. Unlawful Detainer ? Tenancy at Will ? Insufficiency of Complaint ? Failure to Allege That Three-day Notice Required by Section 6746, Revised Codes 1921, was Given. 1. An action in unlawful detainer to recover possession of real property from a tenant at will cannot be maintained, under sections 9889 and 6744-6746, Revised Codes 1921, without first terminating the tenancy by giving at least thirty days notice in writing and, after its termination, giving three days notice to surrender possession, and the complaint must show that both notices were given; hence where plaintiff alleged that the thirty-day notice was given but failed to aver that the three-day notice was likewise given, the complaint did not state a cause of action and the justice court before which the action was brought was without jurisdiction to try the cause. Same ? Tenancy from Month to Month One at Will ? Rule Above Applies. 2. A tenancy from month to month is in effect one at will and therefore the rule above, under which the three-day notice required by section 6746, Revised Codes 1921, is a condition precedent to the right to commence an action in unlawful detainer, controls as to a tenancy from month to month. (MR. JUSTICE GALEN dissenting.) Prohibition ? Writ Lies, When. 3. The writ of prohibition is appropriate only when the lower court is acting without or in excess of jurisdiction and when the relator has no plain, speedy and adequate remedy at law. Unlawful Detainer ? Judgments ? Res Adjudicata ? As to What Judgment Conclusive. 4. The general rule that a judgment or decision is conclusive not only upon the questions actually determined but also upon all matters which might have been litigated in the action or proceeding, held inapplicable in a cause where the determinative question was the validity of a judgment based upon an insufficient complaint for unlawful detainer, which questions could not have been passed upon by the supreme court in original proceedings (prohibition and certiorari) relied upon as res adjudicata, for reasons stated. - Page 163 Same ? Equity ? Offsetting Judgment Against Another ? When not Permissible. 5. Where in a suit in equity to have a judgment rendered by a justice of the peace in an unlawful detainer action offset against a judgment awarded defendant, the complaint in the detainer action was insufficient to state a cause of action for want of proper notice (see pars. 1 and 2), the judgment therein was in effect no judgment, and hence not subject to offset. Justice Courts ? Jurisdiction as to Amount Involved. 6. A justice court is without jurisdiction to render judgment in excess of $300 in any action other than for forcible entry and unlawful detainer. Same ? Presumption in Favor of Jurisdiction not Permissible. 7. A justice court is one of inferior jurisdiction and no presumption may be indulged in favor of its jurisdiction; its docket must show affirmatively all the facts necessary to confer it. Same ? When Judgment Open to Collateral Attack. 8. A party asserting rights under a judgment in a justice court must affirmatively show every fact necessary to confer jurisdiction, and where it appears that it had none, the judgment is subject to collateral attack.

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