OPINION BY THE COURT.
MECHEM, District Judge.
[1] The appellant objects that she was not given the 30 days’ notice to which by statute (Laws 190Í, e. 32) she was entitled. Appellant answered in the justice of the peace court by a written pleading in which this defense is not alluded to. In the district court, in addition to the written answer in the record, appellant filed a pleading named by her attorneys a “plea,” in which this defense is not set out. While it is true, as contended by appellant’s counsel, pleadings are not required in the justice of the peace court to be in writing (section 3255, C. L. 1897), and upon appeal the ease is tried de novo in the distict court “and the same rules shall govern the district court in said trial that are prescribed for the government of justices’ courts” (section 3317, C. L. 1897), yet, where in such cases a defendant elects to file a written answer, he should be held to be confined to the issues he thereby tenders and to have abandoned such defenses as he fails to set out. Royal Fraternal Union v. Crozier, 70 Kan. 85, 78 Pac. 162; Johnson v. Acme Harvesting Mach. Co., 24 Okl. 468, 103 Pac. 638.
[2] That appellee attempted to prove notice and failed is not important because the defense of a want of notice had been waived by the appellant and therefore was not an issuable fact. Of the power of a defendant in an action of unlawful detainer to waive the statutory notice to vacate there 'can be no doubt. Wolfer v. Hurst, 47 Or. 156, 80 Pac. 419, 82 Pac. 20, 8 Ann. Cac. 725; Lucas v. Brooks, 18 Wall. 436, 21 L. Ed. 779.
[3] Appellant alleged, and the evidence in the case showed, that before bringing the action appellee had rented the premises to Dr. David Knapp, and it is claimed that by such leasing Knapp became the real party in interest and that he alone is entitled to maintain this action. We are of the opinion that the appellee is the proper-party plaintiff. Vincent v. Defield, 98 Mich. 84, 56 N. W. 1105; Schreinner v. Stanton, 26 Wash. 563, 67 Pac. 219. See note to Washington v. Moore, 120 Am. St. Rep. 29-36.
[4] In the district court the appellant objected to-going to trial for the reason “that there is no such corporation as the Board of Education of the City of Santa Fé.” The statute (section 1564, C. L. 1897) incorporating boards of education provides that their name and style-, shall be the “Board of .Education of the City (or Town) of--- — , of the territory of New Mexico.” The-mistake in the name of the plaintiff might have been corrected by the judge before judgment (sub-section 82, § 2685, C. ;L. 1897), or after judgment (sub-section 86), or may be by this court (sub-section 94, Id.). A's there can be no question as to the identity of the corporation suing, the objection will not be considered on appeal.
The judgment of the lower court is affirmed.
Roberts, C. J., and Parker, J., concur. Free access — add to your briefcase to read the full text and ask questions with AI