
    No. 297
    LEVIN v. FRITCH
    No. 18972.
    Supreme Court
    Motion to direct Hamilton- Appeals to Certify. ■ Doc.
    Feb. 21, 1925,
    3 Abs. 130.
    1193. TRESPASS—Can a person not holding adversely or as of right, trespass on the property leased to another, and prevent him from occupying business, without answering in damages for the injury done?
    114. ATTORNEY AND CLIENT—Can fees of attorney in detainer case brought under this lease by the lessee, be included in damages?
   The question in this case involve those of damages and of interfering with a man’s possession of business property, whereby he is unable to conduct his business.

Abe Levin leased a building containing two stores and the second floor of the building for the purpose of conducting a furniture business. He entered into possession of a part of the premises on April. 1st, 1922, and attempted to get the place in shape so that he could be ready for business on May 1, 1922.

Fritch was a former tenant whose lease expired March 31, 1922. He held over from March 31, until April 30, 1922. On May 1st he refused to vacate although duly served with legal notice. May 2nd forcible entry and de-tainer proceedings were instituted; and judgment found Fritch guilty and a writ of restitution was issued.

Fritch, by some means, did not vacate until June 3rd; and in the meantime Levin’s business was completely stopped and the furniture was stacked each piece on another, so that it could not be shown, nor could anybody get in or out to do business. Part of the furniture remained in the street.

Fritch had conducted a pool room and restaurant in the part formerly occupied by him, said business being operated 24 hours a day. Levin was thus prevented from tearing out the partition so as to remodel his store room making it fit for his purpose. Levin sued for $1050, in the Hamilton. Common Pleas, and judgment was there rendered in favor of Levin. The Court of Appeals ruled that as Levin had not gone into possession of that part of the property he could not recover and the case was reversed.

Attorneys—Harry Hess for Levin; H. E. Englehardt, for Pritch; both of Cincinnati.

The questions involved are:

■ 1. Whether' a person not holding adversely or under a color of right, may trespass on the property léaséd to another and prevent him from entering and conducting business without answering in damages for the injury done ?

2. Can attorney’s fees for service rendered in the forcible- entry and detainer case, including advice of attorney given to client as to rights under the lease, be got as damages?

VIEWPOINTS

In this issue are several decisions as to matters of practice the lawyer should impress upon the tablet of his memory. One of them, in Arthur v. O’Marr, page 179, is that when an estate is sued, the fact that the claim has been allowed or rejected should be plead. Another is, that in pleading over after demurrer sustained, alleged errors in the original ruling may be waived. Bingham v. Nypano, page 185.

Presumably the longest syllabus on record appears in the McKenzie Lumber case, page 185, herein. With some difficulty we have succeeded in indexing each statement to a short, pertinent, digest paragraph.

The case of McLean' v. Toledo Terminal Co., page 178 herein, presents three points worthy of remembrance by all lawyers not familiar with them: 1. Doctrine of imputed negligence does not here exist, 2. The Scintilla rule does, and 3. Question of contributory negligence is for the jury to decide.

The Pending Cases, pages 187, 188, raise some nice questions of practice, the final decisions of which, will undoubtedly establish precedents that should be remembered by attorneys.

Demurrer to an answer, may raise an interesting question as to the petition, or amended petition. See State v. Lucas Co., Page 182.

Next week’s Abstract will be the first issue of April, and it will contain the monthly Digest, covering all the opinions published in the four March numbers, together with the Concordance and Code Notes for March cases. This cumulative monthly publication enables searches for authority upon desired points to be made more easily than to go through the separate weekly issues in a hunt for them. It should be remembered that the Cumulated Digest and Table of Cases for each month will always be found in the first issue of the following month.  