Summary
In Haas, the court determined that appellee held title to the property by duly-recorded deed and that "[f]or the purpose of the forcible entry and detainer action, this was conclusive of his right to present possession after having given the required notice to vacate the premises."
Summary of this case from Eckart v. NewmanOpinion
No. 38119
Decided December 11, 1963.
Forcible entry and detainer — Jurisdiction of Municipal Court — Action not barred by pending action to quiet title — Limitation of actions — Waived as bar to action, when — First raised in motion for new trial.
1. A Municipal Court, under Section 1901.18, Revised Code, has jurisdiction to hear and determine a forcible entry and detainer action, where, although title to the realty is drawn in question, there is no question as to present record title.
2. The pendency of an action to quiet title to realty in a Court of Common Pleas is not a bar to a forcible entry and detainer action in a Municipal Court.
3. The two-year period of limitations referred to in Section 1923.01, Revised Code, is waived as a bar to a forcible entry and detainer action, where it is first raised in a motion for a new trial. (Section 2309.10, Revised Code, applied.)
CERTIFIED by the Court of Appeals for Summit County.
In March 1957, Martin Gerski, a widower with no children, executed a will, naming Charles J. Haas and his wife, "or the survivor of them," as the sole devisees of his property. Thereafter in November 1957, Martin Gerski executed and delivered a quitclaim deed for the property here in question to Charles J. Haas, the appellee herein.
In October 1959, after the execution of the will and the deed, Martin Gerski married his present wife, Lena Gerski, the appellant herein, and they lived on the premises. In June 1960, Martin Gerski brought an action in the Court of Common Pleas against Haas and his wife to recover the property, based upon the failure of Haas to carry out oral promises for the benefit of Gerski. In his answer, Haas denied making the promises of maintenance and support but pleaded that it was mutually agreed that Gerski could remain in full occupancy of the property and retain for his own use all income derived from the property, and that Haas would pay all future taxes and liquidate a mortgage in the approximate sum of $6,500, which was done. Martin Gerski died on April 1, 1962, and the case was revived in the name of the appellant.
Promptly after the decedent's will was admitted to probate, the appellant elected as surviving spouse to take under the statutes of descent and distribution. She continues to live in the home on the premises.
In May 1962, appellee instituted an action in the Akron Municipal Court for eviction of the appellant and for reasonable rental of the premises alleged to be unlawfully occupied by the appellant. The appellant's defense to the action is based on the contention that such court has no jurisdiction to determine the action since title to the premises is in controversy. In support of her allegation that title to the premises is in controversy, appellant advanced the pendency of the action to quiet title in the Court of Common Pleas and her right to live in the "mansion house" for one year following the death of her husband.
After hearing on the merits, the Municipal Court entered judgment for $125.40 as the reasonable rental value of the property and ordered restitution of the premises to appellee. At the hearing on the appellant's motion for new trial, she moved to amend her answer so as to set up as an additional defense that the action in forcible entry and detainer was not brought within the two-year limitation referred to in Section 1923.01, Revised Code. Both motions were denied.
The Court of Appeals affirmed the judgment of the Municipal Court. The record of the case was certified to this court, the judgment of the Court of Appeals having been found to be in conflict with the judgment of the Court of Appeals for Montgomery County in the case of Lynam v. Schueler (1946), 79 Ohio App. 101.
Messrs. Vogel, Mason Wilson and Messrs. Johnstone, Skidmore, Church Johnstone, for appellee.
Messrs. Brouse, McDowell, May, Bierce Wortman, for appellant.
The first matter for consideration is the extent of the jurisdiction of the Akron Municipal Court to hear and determine forcible entry and detainer actions. The subject-matter jurisdiction of Municipal Courts is set forth in Section 1901.18, Revised Code. Subdivision A of this section confers jurisdiction in "any civil action, of whatever nature or remedy, wherein judges of county courts have jurisdiction." Thereafter, subdivisions B through H carefully define the civil jurisdiction of Municipal Courts. Subdivision H specifically confers jurisdiction in "any action of forcible entry and detainer."
The cause of action for forcible entry and detainer is created by Chapter 1923, Revised Code. Under this chapter, jurisdiction over such actions is conferred on the County Courts. County Court jurisdiction is defined by Chapter 1909, Revised Code, and in Section 1909.10 in this chapter it is provided that County Court judges do not have jurisdiction over any action "For the recovery of title to real estate, or in an action in which such title may be drawn in question." No such limitation is expressly stated in Section 1901.18, Revised Code. Does the wording of Section 1901.18 (A), Revised Code, imply that this limitation is imposed on the jurisdiction of Municipal Courts?
In view of the broad grant of jurisdiction to Municipal Courts to hear and determine "any action" in forcible entry and detainer, the only reasonably inferred purpose of Section 1901.18 (A) is to confer upon Municipal Courts that jurisdiction possessed by County Courts in all civil actions not specifically enumerated and not to incorporate by reference into the Municipal Court Act the statutes relating to County Court jurisdiction. To hold that subdivision (A) incorporates by reference the jurisdictional limitations on County Courts, as the appellant contends, would reduce the well established jurisdiction of Municipal Courts, since the authority of County Courts, both as to monetary limits and as to subject matter, is much more limited than that of Municipal Courts. Cf. Chapters 1901 and 1909, Revised Code.
The next issue for consideration is whether the fact that an action to quiet title to the premises in question is pending in the Court of Common Pleas of Summit County prevented the Municipal Court from rendering judgment in the forcible entry and detainer action. An action in forcible entry and detainer is solely a possessory action. Carroll v. O'Conner (1874), 25 Ohio St. 617. It does not determine the title to real property. The gist of the action is the right to present possession. 24 Ohio Jurisprudence (2d), 455, Forcible Entry and Detainer, Section 3. Where, as here, possession is dependent on title, it is the present title which controls. In such an action, the court as an incident to determining the right to possession may determine in whom the present title rests, but it is only to this extent that title is determined and such determination in no way binds the Court of Common Pleas. 24 Ohio Jurisprudence (2d), 478, Forcible Entry and Detainer, Section 21. Since the forcible entry and detainer action relates only to present possession and not title, the fact that another action is pending relating to the issue of title does not constitute a bar to the action in forcible detainer. William Weisman Holding Co. v. Miller (1922), 152 Minn. 330, 188 N.W. 732; Lyons v. Lyons (1939), 185 Okla. 70, 90 P.2d 391; and Merki v. Merki (1904), 212 Ill. 121, 72 N.E. 9.
In the case at bar, appellee held the title to the property by duly recorded deed. Appellee also held title to the premises by virtue of being a devisee under the will. (Even if appellant had a statutory right to live in the "mansion house" for one year after the death of her husband, that right expired on April 2, 1963.) For the purpose of the forcible entry and detainer action, this was conclusive of his right to present possession after having given the required notice to vacate the premises. Were appellee not permitted to prove his right to possession by proving his record title, the forcible entry and detainer statute would have little meaning. Brown v. Burdick (1874), 25 Ohio St. 260; 24 Ohio Jurisprudence (2d), 458, Forcible Entry and Detainer, Section 5.
The question of whether this action was barred by the passage of the two-year period referred to in Section 1923.01, Revised Code, was first raised by the appellant in the motion for a new trial. The statute of limitations was not pleaded as a defense by the appellant. By failing to plead the statute, the appellant waived the bar. See Sections 2309.08(I) and 2309.10, Revised Code, and 34 Ohio Jurisprudence (2d), 661, Limitation of Actions, Section 184.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and HERBERT, JJ., concur.