The case referred to in the first ground assigned in the motion to dismiss was instituted by plaintiff to enjoin the threatened eviction of the plaintiff by the defendants from the premises occupied by him under written lease from the defendants and was brought before any action seeking to evict the plaintiff from the premises had been instituted by the defendants.
It is predicated upon the ground that plaintiff had not violated the lease or in any way given the defendants cause for eviction, and that the plaintiff had no adequate remedy at law. It differed from the instant action in that it was brought to enjoin threatened eviction and not to enjoin the enforcement of a judgment in an action in forcible entry and detainer of restitution and eviction, and in that it was not predicated upon the claim that by the terms of the written lease forfeiture thereof was not prescribed and could not be declared or adjudicated. This court, upon the trial of the cause on appeal from the Common Pleas Court, rendered judgment holding that the plaintiff had an adequate remedy at law and was, therefore, not entitled to the remedy of injunction, and dismissed plaintiff’s petition.
The issues presented in the instant case differ from the issues presented in the former injunction case in that this is an action to enjoin enforcement of a judgment of restitution and eviction rendered by a justice of the peace prior to the expiration of the term of a lease of real estate in an action in forcible entry and detainer, based on a written lease wherein there is no provision for forfeiture or re-entry upon failure of tenant to pay rental as therein prescribed or otherwise to perform the terms thereof on his part to be performed.
The question raised by the motion to dismiss is whether a judgment of forfeiture and evidence in an action based on a written lease which contains no provision for forfeiture, rendered by a justice of the peace in a forcible entry and detainer action, prior to the expiration of the term of the lease, may be enjoined by a court of equity where the defense of nonforfeiture by reason of the terms of the written lease was available as a defense in the action.
Supreme Court Decides Public Transportation Case
