
    Lucius Leutzey v. Christian Herchelrode and another.
    1. The 107th section of the justices’ code (S. & C. 788), which requires a justice of the peace to render his judgment immediately upon return of the jury’s verdict, does not apply to an action of forcible entry or detainer, which is governed, in that respect, by the 135th section (p. 793) of the same act.
    3. The statutory notice to leave the premises, required to be given in an action of forcible entry against a tenant holding over his term, may be served as well before as after the expiration of the term.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Montgomery county.
    The case is' sufficiently stated in the opinion of the court.
    
      D. A. Houle and Conover ds Craighead for the motion:
    1. The three days’ notice required by the statute as the basis of the original action before the justice, was never given according to law. S. & C. 791, 792, secs., 125, 128.
    Sec. 125 provides that such “ proceedings may be had in all cases against tenants holding over thevr terms” etc.
    Sec. 128 as to notice provides that “it shall be the duty of the party desiring to commence his action under this article to notify the adverse party,” etc. S. & C. 792, sec. 128.
    A party cannot, in a legal sense, desire to commence his action, in such case, until the tenant is in default. Until he has passed the rightful and lawful term of his tenancy, he cannot, in legal contemplation, be treated as the “adverse jpa/rty.”
    2. The judgment originally before the justice was not entered “ immediately after the rendition of the verdict,” as required by law. The verdict was rendered July 18th and the judgment was entered July 21st, 1866. S. & C. 788, sec. 107; Robinson v. Kious, 4 Ohio St. 593.
    
      Houk <& McMahon, contra:
    1. It is not necessary that the three days’ notice should be given after the tenant holds over wrongfully. The statute does not indicate when the three days’ notice shall be given, except before suit. They are not intended for days of grace, but simply to warn the tenant to quit at the time indicated.
    2. The rendition of the judgment on the 21st, trial being had on the 18th, is not erroneous. The action of forcible detainer is regulated by special provisions of art. 10 of the justices’ code. See sections 126,. 128, 129, 130, 134, 135, etc. Section ’107 of the justices’ code does not apply. Its substitute is found in section 135, where the word “ immediately ” is omitted.
   By the Court:

This was an action of forcible detainer, tried to a jury before a justice of the peace, and it is assigned for error, among other things, that the judgment of the justice was not rendered till the third day after.the return of the verdict by the jury. There was no error in this. The provision of the statute (1 S. & C. 788, sec. 107) requiring the justice “ immediately ” to render judgment upon return of the verdict does not apply to a case of forcible entry or detainer. The provision applicable to the case is the 135th section of the same statute (p. 793), which authorizes the justice to “render such judgment as if the facts . . . had been found to be true by himself.” Where the facts are found by the justice himself, there is no law requiring him to render his judgment immediately.

Another question raised by the assignments of error is. whether the complainant’s notice to the defendant to leave the premises, in cases where the defendant is a tenant in possession, may be served before the expiration of his term. The notice was served on the 31st of May, the term expired on the 30th of June, and the action was commenced on the 2d of July. We think the justice rightly held that the notice was sufficient.

Motion overruled.  