Barnes v. Conner Et Al‪.‬

HOOD, Associate Judge. The action below was for possession of real estate on account of alleged default in payment of rent. Defendant, who is an attorney, appeared on the return day and moved to dismiss the complaint because it failed to show, at the place indicated on the printed form of complaint, whether notice to quit had been given or whether such notice had been waived in writing. 1 When plaintiff stated, and defendant admitted, that defendant held possession under a written lease which waived notice to quit in the event of default in payment of rent, the trial court permitted plaintiff's counsel to amend the complaint by inserting a check-mark on the printed form, indicating that notice to quit had been waived. Defendant complains of this action, but we think it was entirely proper. Proceedings in landlord and tenant actions are informal and defendant was in no way prejudiced by the amendment. Following the allowance of the amendment, and denial of the motion to dismiss, defendant stated he wished to file an affidavit of defense and a demand for trial by jury. No written defense is required in such proceedings unless defendant demands a jury trial. L. & T. Rule 4. Such demand must be made in writing on the return day or within such further time as the court may fix. L. & T. Rule 7. The trial court continued the case until the next day, 'at which time the defendant should file his Affidavit of Defense and Demand for a Jury Trial.' On the following morning the case was called on the regular calendar but defendant did not appear. At the completion of the calendar call, the case was again called, and, defendant still not appearing, judgment for plaintiff by default was entered. Later in the same day defendant filed his affidavit of defense and demand for jury trial, and on the following day filed a motion to vacate the default judgment. This motion was denied and from the judgment defendant has appealed.