Belinski v. Brand

76 Ill. App. 404, 1898 Ill. App. LEXIS 143

• Court: Appellate Court of Illinois
• Decided: May 9, 1898
• Status: Published

Opinion

Mr. Justice Sears

delivered the opinion of the court.

It is contended by counsel for appellant that the court erred in denying the motion to strike the cause from the short cause calendar. Without discussing the grounds of the motion, which related to irregularity of service of notice and filing affidavit, it is enough to say that the motion came too late when made after the cause was reached for trial.

The notice upon which the cause was placed upon the short cause calendar, was served upon appellant on April 27th, was filed upon April 28th, and no motion was preseated to strike the cause from the calendar until June 21st following, when the cause was called for trial. The court properly refused to entertain the motion at that time. Treftz v. Stahl, 46 Ill. App. 462; Johnston v. Brown, 51 Id. 549; Oliver v. Gerstle, 58 Id. 615; Stewart v. Carbray, 59 Id. 397; Wheatley v. Chi. Trust & Sav. Bank, 64 Id. 612.

It is also contended that notice to appellant and demand were essential before there could be a right of recovery of possession because of non-payment of rent. But the terms of the lease expressly waive notice and demand, and hence none were necessary. Espen v. Hinchliffe, 131 Ill. 468.

Appellant having held over, and appellees having recognized him as a tenant holding under the lease, its provisions must be treated as controlling. Goldsbrough v. Gable, 152 Ill. 594; Condon v. Brockway, 157 Id. 90.

Whatever rights under the lease were in the original lessor, were vested in its grantees, the appellees, by reason of the conveyance of the premises and by force of the statute. Rev. Stat., Chap. 80, Sec. 14; Thomasson v. Wilson, 146 Ill. 384.

Nor is the decision in Sexton v. Chicago Storage Co., 129 Ill. 318, relied upon by appellant, to be regarded as holding to the contrary.

The announcement of the rule of the common law, that the right to enter for breach of condition subsequent could not be alienated, can not be taken as a construction of section 14 of our statute in relation to landlord and tenant. The effect of the decision, so far as it touches upon the question here considered, is to distinguish the right of re-entry, transferred to the grantee by force of the statute, from a reversionary interest, and it does not at all hold that such right of re-entry is not transferred by operation of the statute.

It is also urged that the description of the premises in the verdict is incorrect. The verdict follows the description in the complaint, as it should; and it does not matter what the description may have been' in the instruction given to the jmy directing a verdict. It is enough that the verdict is right.

The fact that the receipts for rent were given in the name of one of the appellees only, is not material. It is undisputed that the agent who collected acted for all the appellees.

There was no evidence which could have warranted the jury in finding the issues for appellant. Upon-the evidence appellees were entitled to a verdict. Hence the peremptory instruction directing the jury to find for them was proper.

The judgment is affirmed.