In our opinion the trial judge had jurisdiction to entertain the cause upon the question of rent only; it was “consistent with the case made by the complaint and embraced within the issues. ’ ’ (Rev. Codes, see. 6713.) Our statute is so worded, however, that . [4] to support a recovery of rents in this action, it was requisite for the plaintiff to establish, and for the jury to find, that there had been an unlawful detainer. Failure on the part of the tidal court to permit this was error. But the error was not available [5] to the defendant upon his motion for new trial, and cannot be urged here, because it was upon his objection that the evidence tendered by the plaintiff to establish the unlawful detainer was *335rejected, and with his acquiescence the trial court proceeded to the close of the evidence upon the theory that the only issue was the amount of rent due. (Dempster v. Oregon Short Line R. R. Co., 37 Mont. 335, 96 Pac. 717.)