STOVALL v. GARDNER

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Docket Number

No. 36805.

Attorney(S)

Satterfield, Ewing Hedgpeth and Frank T. Williams, all of Jackson, for appellant. Appellee failed to make out a case. Masonite Corporation v. Dennis, 175 Miss. 855, 168 So. 613; Downing et al. v. Campbell, 131 Miss. 137, 95 So. 312; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Griffith's Mississippi Chancery Practice, p. 621, Sec. 564. The demurrer to the supplemental affidavit of defense was erroneously sustained. Fleming v. Dusty et al., 331 U.S. 100, 91 L.Ed. 1368; McGuinn v. McLain, 225 N.C. 750, 36 S.E.2d 377; Matkowsky et al. v. Katz, 184 Misc. 60, 53 N.Y.S.2d 430; Ricci v. Claire, 21 N.J. Misc. 266, 32 A.2d 591; Myers v. H.L. Rust Co., 77 U.S. App. D.C. 218, 134 F.2d 417; Cannon v. Gordon, 181 Misc. 950, 48 N.Y.S.2d 124; Code of 1942, Sec. 947. The landlord had lost the right to recover in this cause by reason of a change in the statutes even if such right were possessed when the suit was filed. Fleming v. Dusty, supra; Woods v. Schmid et al., 164 F.2d 981; Johnson v. Butler Bros., 162 F.2d 87; Griffith's Mississippi Chancery Practice, Sec. 169. The court should have excluded attempted proof of desire for use and occupancy now by appellee and should have permitted cross-examination as to residence in Yazoo City by appellee. The motion to quash should have been sustained because the original affidavit did not show the alleged authorization certificate from the Area Rent Office nor a copy of it, and because there was no legal description of the premises in the original affidavit. Downing et al v. Campbell, supra; Dowling et al. v. Reber, 65 Miss. 259, 3 So. 654; Naul v. State, 70 Miss. 699, 12 So. 903. The county court was without jurisdiction to hear and determine this cause in the first instance and same should be dismissed for lack of jurisdiction. McMillan v. Best, 171 Miss. 811, 158 So. 488; Hines Motor Co. v. Hederman, 201 Miss. 859, 30 So.2d 70. R.H. J.H. Thompson, of Jackson, for appellee. The right of a landlord to recover double rent from a tennant holding over after notice to quit is settled in Mississippi. Double rent can be recovered when notice to vacate has been given under Supplementary Amendment 6 to Maximum Rent Regulation. Sherrill v. Stewart, 197 Miss. 880, 21 So.2d 11, 199 Miss. 216, 23 So.2d 915; Banks v. City of Jackson, 152 Miss. 844, 120 So. 209; Weatherall v. Brown, 113 Miss. 887, 74 So. 765; Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556; Burbank v. Inhabitants of Auburn, 31 Me. 590; Owens v. Greenville News-Predmont, 43 F. Supp. 785; Reccrardi v. Lazzara Baking Corporation, 32 F. Supp. 956, 957; Code of 1942, Sec. 2883; Title II, Public Law 129, 80th Congress, U.S. Code Congressional Service Advance Sheet No. 6, p. 200; Public Law 464, 80th Congress, Sec. 204; 26 Words Phrases (Perm. Ed.), 58, 59. The county court had jurisdiction to hear and determine this cause. McMillan v. Best, 171 Miss. 811, 158 So. 488; Hodges v. Jones, 197 Miss. 107, 19 So.2d 518; Ellison v. Landry et al., 199 Miss. 161, 24 So.2d 319; Hines Motor Co. v. Hederman, 201 Miss. 859, 30 So.2d 70. E.H. Cunningham, Jr., of Jackson, amicus curiae. Double rent statute of the state (Section 947, Code of 1942) for tenant holding after notice to quit did not entitle the plaintiff to recover an amount exceeding the maximum rent fixed by Emergency Price Control Act of 1942, as amended, and the Housing and Rent Act of 1947 and regulations issued thereunder. McGuinn v. McLain, 225 N.C. 750, 36 S.E.2d 377; Ricci v. Claire, 21 N.J. Misc. 266, 33 A.2d 591; Thompson v. Taylor, 60 F. Supp. 395; Matkowsky v. Katz, 184 Misc. 60, 53 N.Y.S.2d 430; Jordan v. Moore (Mo.), 194 S.W.2d 948; Porter v. Shibe, 158 F.2d 68; Porter v. Merhar, 160 F.2d 397; Fleming v. Rhodes, 311 U.S. 100; Woods v. Schmid, 164 F.2d 981; Porter v Lee, 66 S.Ct. 1096; Fleming v. Simms, 164 F.2d 153; Bowles v. Case, 149 F.2d 777; Porter v. Dicken, 66 S.Ct. 1094; Code of 1942, Sec. 947; Emergency Price Control Act of 1942, as amended ( 50 U.S.C. § 901 et seq.); Rent Regulation for Housing (8 F.R. 7322); Housing and Rent Act of 1947 (Pub. Law 129, 80th Cong., 1st Sess.); Controlled Housing Rent Regulation (12 F.R. 4331). Argued orally by Harvey T. Hedgepeth, for appellant, and by Bob Thompson, for appellee.

Judges

Alexander, J., delivered the opinion of the court.

Acts

— WAR AND NATIONAL DEFENSEARMED FORCES RESERVE — Repealed

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STOVALL v. GARDNER.

1. LANDLORD AND TENANT. War.

A claim for double rent after notice to tenant to quit under statute was for a "penalty" and was not for "rent" in the accepted sense which is a stipulated consideration for use or occupancy of property, subject to control and limitation under federal statutes administered by OPA (Code 1942, sec. 947).

2. LANDLORD AND TENANT. War.

The operation of local laws with respect to eviction of tenants after due notice was left free by federal statutes administered by OPA as against those who having lost status of tenants were no longer objects of federal concern.

3. LANDLORD AND TENANT.

The liability of a tenant holding over after notice to quit for double rent is absolute (Code 1942, sec. 947).

4. LANDLORD AND TENANT. War.

One who was no longer within orbit of federal statute administered by OPA because of certificate issued by OPA authorizing action to be brought for his eviction in accordance with requirements of local law could not avoid penalty of double rent provided by local law for period after notice to quit on ground that it would constitute an exaction of a higher compensation for such occupancy than allowed by OPA (Code 1942, sec. 947).

Alexander, J., delivered the opinion of the court.

Appellee filed her affidavit under Code 1942, Section 949, to remove appellant as a tenant of certain premises in the City of Jackson. The affidavit recited the prior issuance of a certificate of authorization thereunto by the Office of Price Administration for the area involved. The proceedings for eviction are found to be regular. Judgment of eviction was entered by the county court, and upon appeal to the circuit court there was a directed verdict for the landlord, together with judgment for double rent pursuant to Code 1942, Section 947.

Certain irregularities were pressed by appellant involving the proceedings before the Office of Price Administration. We have examined all these and do not find in them sufficient substance to avoid the eviction proceedings. It is worthy to note that the federal agency, although it filed brief as amicus curiae herein, raised no point that the precedent authority it had given was inadequate.

Our chief inquiry relates to the right of the landlord in such case to double rent after notice to the tenant. The certificate of the O.P.A. described the tenant and the premises and stated "This certificate only authorizes an action to be brought for the eviction or removal of the tenant instituted in accordance with the requirements of local law . . ."

Let us first examine the nature of the "double rent" provided by the "local law." The additional burden thus imposed is a penalty. Sherrill v. Stewart, 199 Miss. 216, 23 So.2d 915. It is not rent in the accepted sense. Rent is a stipulated consideration for the use or occupancy of property. It is the subject of contract actual or implied. As such it was subject to the control and limitation under the federal statutes administered by the O.P.A. The landlord had no authority to exact under any contract a higher compensation for such occupancy than that allowed by the federal agency.

Authorization by the O.P.A. to proceed under the local law lifted pre-existing barriers to the eviction of the tenant after due notice. Thereafter the tenant is chargable not for his occupancy but for his obstinacy. His occupancy after notice is unathorized and unlawful. Compare 32 Am. Jur., Landlord and Tenant, Sec. 919, p. 779. His right to remain is removed by the withdrawal of the protection of the federal regulation; his duty to vacate arises from the notice by the landlord. Thenceforward his obligation arises not by contract but by "local law." The O.P.A. suspended the operation of certain state statutes, but did not repeal them. Its protection extended only to those who had not forfeited their rights under local laws. It was never intended that those would be protected who had been denied the right of occupancy. The operation of local laws was left free as against those who having lost the status of a tenant, were no longer objects of federal concern. Moreover, the liability of a tenant holding over after notice to quit, for double rent is absolute. Weatherall v. Brown, 113 Miss. 887, 74 So. 765. Although computed upon the basis of former rent, it is not rent. Above all, as heretofore stated, it accrues not by contract but is imposed by statute. When the relation of landlord and tenant is lost, so also the protection and supervisory power of the O.P.A.

We must hold, therefore, that one who is no longer within the orbit of the federal statute because no longer a tenant, cannot avoid the penalty provided by Section 947. It is the law and not the landlord which makes this exaction.

We are aware that several courts have expressed views at variance with our conclusion. We have examined these opinions with interest but do not find in them sufficient reason to justify the surrender of our convictions.

Affirmed.

STOVALL v. GARDNER.

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