McCoy v. Duehay

279 F. 1001, 51 App. D.C. 363, 1922 U.S. App. LEXIS 1656

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 3, 1922
• Docket: No. 3678
• Status: Published

Opinions

VAN ORSDEL, Associate Justice.

Appellee filed an affidavit of merit, which in the absence of a sufficient affidavit of defense would entitle him to recover. In the affidavit of defense it was averred, among other things:

“The municipal court did not have any jurisdiction of this action, as the notice was not in accordance with the requirements of the Ball Kent Law [41 Stat. 2083, and a certificate of permission has not been obtained by the plaintiff from the rent commission of the District of Columbia, under the said law certifying that the plaintiff was entitled to possession; that no application was made by the plaintiff: to the rent commission; that the plaintiff dot's not want or need the said premises for the actual bona fide occupancy of himself, his wife, or children, or dependents, or for the purpose of tearing down or razing same, in order to immediately construct new rental property, ho :el, or apartment; that the plaintiff had not complied with any of the requ.rements of the Kent Commission Law of the District of Columbia known as the Báll Rent Law, nor with the Saulsbury Resolution.”

[1] In a number of cases this court has held that, where it appears by affidavit of defense or plea that the jurisdiction of the rent commission has been invoked, and the case is there pending involving the right to possession, the jurisdiction of the municipal court is suspended pending the determination of the case by the rent commission. Killgore v. Zinkhan,-App. D. C. -, 274 Fed. 140; Smith v. Pyne et al., —- App. D. C. —, 274 Fed. 142.

In Smith v. Pyne, supra, the plaintiff by plea and affidavit of defense set out a proceeding instituted by Pyne before the rent commission for the same cause of action, and that this proceeding was stilly pending and undetermined, and for that reason challenged the jurisdiction of the court below. On this point the court said:

"The provisions of the Code giving the municipal court jurisdiction to hear and determine controversies between landlords and tenants respecting the possession of real 'estate must be construed in connection with the pertinent provisions of the Ball Act. 41 Stat. 298. They are in pari materia. The municipal court has jurisdiction over the subject-matter, and with the proper parties before it may hear and determine all controversies relating to the .•subject on such evidence as may be adduced, when no objection is made; but ■when objection is made, to the effect that the court cannot proceed, except •upon the determination of the rent commission under the Ball Act, it must s suspend proceedings until that determination is presented in evidence. When ■it is presented, the court must accept it as conclusive and pronounce judgment according to it.”

i But that is not this case. There is no averment here that an action ha’d been instituted and was pending before the rent commission, as in the Pyne Case, or that the jurisdiction of the rent commission had been in any manner invoked. The affidavit amounts merely to a compliint that such action had not been taken, and that notice had not been given “in accordance with the requirements of the Ball Rent Law.” Such an averment is not sufficient to deprive the court of jurisdiction to proceed in a case of this sort. Until the jurisdiction oí the rent commission has been invoked in the manner authorized by the statute, the municipal court has full jurisdiction to proceed, and a mere reference to the Ball Act, or the existence or jurisdiction of the commission, is not sufficient to stay the hand of the court. There is no averment that appellant had invoked' the jurisdiction of the rent commission,-or even desired to do so.

[2] It is unnecessary to determine whether the tenancy was from month to month or by sufferance. If from month to month, as set out ■ ir the affidavit of merits it began on the 1st day of the month. The n itice, therefore, requiring the tenant to quit on the 1st day of December, was strictly in conformity with the provisions of section 1219 of the District Code. On the other hand, if the tenancy were by sufferance, as conte'nded by counsel for appellant, the situation would not .be different, since full 30 days’ notice was given.

[3] The acceptance of rental until November 30th did not amount to a waiver of notice or the creation of a new tenancy, since the notice did not expire until December 1st, and the mere fact that appellant was given 31 days’ notice, instead of the 30 days by statute required, is a matter of which she cannot complain.

“The giving of the additional day was an advantage to the defendant; of this he has no just cause of complaint.” Boss v. Hagan, 261 Fed. 251, 256, 49 App. D. C. 106, 108 (8 A. L. R. 1508).

[4] Saturday afternoon is a legal holiday in the District of Columbia. Code D. C. § 1389. It is contended that, if the Saturday half holidays were excluded, the notice would be invalid, in that it would not have run 30 days, exclusive of Sundays and legal holidays. There is nothing in the law, relating to notices to quit in landlord and tenant proceedings, specifically providing that Sundays and holidays shall be excluded. In the absence of such a provision, the 30 days’ notice should be interpreted as including Sundays and holidays. Ihis is the established practice in this District. In Morse v. Brainerd, 42 App. D. C. 448, a notice given on June 30, 1911, to vacate on July 31, 1911, was held to constitute 30 days’ notice under the statute. The notice there could only have been sustained by including both Sundays and holidays.

The judgment is affirmed, with costs.