Larson v. Baker

Plaintiff sued in municipal court alleging that he was entitled to the possession of certain premises under a lease signed by the defendant Cora Baker wherein she leased the premises to plaintiff for one year commencing September 1, 1943. The plaintiff alleged that he had not abandoned or forfeited the lease but that the defendant Cora Baker ""has since the 1st day of September * * * refused to deliver the (premises) up to plaintiff, and the defendant Cora B. Baker unlawfully keeps him out of possession * * * and (she) has leased the * * * property to the defendants, Mr. Gustaf H. Bliesner and Mrs. G.H. Bliesner who are now in possession of the * * * property."" The prayer was for judgment for possession and damages. The defendants moved to dismiss the petition because (1) it did not state a cause of action and showed on its face that plaintiff was not entitled to any relief and (2) because the action was in ejectment and failed to show that plaintiff had title to the premises he sought to recover. Defendants attempted to amend this motion, before submission, to point out that the petition failed to state a cause of action because it failed to allege performance of the lease contract on the part of the plaintiff. The trial court sustained plaintiff's motion to strike the amendment as being an attempt to make a second motion, and then overruled the defendants' motion to dismiss the petition. The defendants' answers admitted the execution of the lease but alleged it was breached and abandoned by the plaintiff before the property was leased to the Bliesners, and the sum of $50 paid by the plaintiff to Cora Baker at the time of the execution of the lease was returned to him. Plaintiff's reply admitted that his check for $50 had been returned to him but that he held a receipt signed by Cora Baker showing rent paid to October 15, 1943. A motion to strike the reply was overruled but a motion to make it more specific was sustained. The amendment to the reply, in compliance with the sustained motion, set up an agreement on or about September 8, 1943, wherein it was alleged defendant Baker was to deliver possession of [235 Iowa Page 202]