Columbia Laundry Co. v. Ellis

36 App. D.C. 583, 1911 U.S. App. LEXIS 5617

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 6, 1911
• Docket: No. 2,245
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

. Under rule 19 of the rules of the supreme court of the District, the plaintiff, by filing an affidavit setting out the grounds upon which he claims possession of the premises described in bis complaint within ten days after docketing an appeal from the judgment of the municipal court (and this was such a judgment), is entitled to a judgment for possession unless the defendant, within ten days after service upon him of a copy of plaintiff’s affidavit, files an affidavit of defense, denying the right of the plaintiff to the possession of the premises, “and specifically stating, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat plaintiff’s recovery.” This rule is analogous to common-law rule 73, and is most equitable in its application. If a tenant has a meritorious defense, he may not be summarily ejected; if he has no defense, it enables the landlord to gain speedy possession of his property, and thus avoid further loss and expense. And while affidavits of defense are to be liberally construed in favor of defendant’s right to a trial upon the merits (Brown v. Ohio Nat. Bank, 18 App. D. C. 598), no defendant should be permitted to avoid the rule by the interposition of indirect and vague statements when it is apparently within his power to comply with the spirit of the rule (Chapman v. Natalie Anthracite Coal Co. 11 App. D. C. 386).

Having these rules of construction in mind, let us briefly analyze the affidavit under consideration. In the first place, the averment that the defendant company was defunct upon a certain day is a conclusion of law, and is therefore bad, because it fails to state the facts from which such conclusion was drawn. Brown v. Delafield & B. Cement Co. 1 App. D. C. 232. The averment that from the day of the incorporation of the Columbia Laundry Company, Inc., it “became and was the tenant of the plaintiff,” is also bad for the same reason. This is a mere conclusion. There is no averment that the plaintiff had knowledge of the demise of the “Columbia Laundry Company” and the birth of the “Columbia Laundry Company, Inc.,” or that any notice was given the plaintiff by the new company of its alleged tenancy. This defect is rendered more serious by the rather ingenious statement that follows, to the effect that the officers of the new corporation, “are, with a few exceptions,” different from those of the old. The “few exceptions” may include the manager of the old corporation, who may be occupying a similar position with the new. The new corporation being engaged in the same business, at the same place, with practically the same name, and, for aught that appears, having the same manager, it certainly was incumbent upon the defendant to state sufficient facts to enable the court to find, as matter of law, that the tenancy of the old corporation had terminated. We think the affidavit fatally defective in that it states conclusions, and not facts, and that, taking it as a whole, it is lacking in the element of good faith which the rule demands.

The judgment will therefore be affirmed with costs.

Affirmed.