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the possession to which the plaintiff is entitled, or of the premises, in the writ, is not necessarily fatal, as the complaint may be looked to in aid of it. As a general rule, all persons in possession of the premises may be dispossessed under the writ;;? but it is held, in Kansas, that the officer has no right to reinove a party who does not hold under the defendant in the writ.3 A bond is sometimes required to be given to the sheriff or other officer who executes the writ.4

14. Appeals and Reviews.-(a) When Appeal may be Taken.--The question as to what judgments and determinations may be reviewed or appealed from, being generally governed by statutory regulations, varies largely in the different States. In Mississippi, an action of forcible entry and detainer may be taken by a writ of error on appeal from the circuit court to the supreme court," but a proceeding before a magistrate cannot be removed to the high court of errors and appeals by such a writ ;6 and, in California, no

possession. The test is that the plaintiff entry and detainer may be dispossessed must be so established in his possession, under the writ of restitution. The nonby the officer, that any person entering residence of the defendant is immaterial. upon him, se invito, will be indictable for De Graw v. Prior, 68 Mo. 158. a forcible entry. The officer is not bound On a warrant of forcible detainer, the to remove the tenant's goods, but may tenant cannot resist restitution to him do so as the agent of the plaintiff. Union from whom he acquired possession. Ball Township v. Bayliss, 40 N. J. L. 60. v. Lively, 2 J. J. Marsh. (K!.) 181.

Co tenants.-In an action of forcible In South Carolina.-A defendant, having entry and detainer against a co-tenant, pleaded guilty to an indiciment for forthe writ of restitution should only put cible entry and detainer, his son-in-law the plaintiff in joint possession with ihe took possession of the premises before a defendant. McHose v. South Si. Louis writ of restitution issued; which, when Fire Ins. Co.. 4 Mo. App. 514.

issued, gave to the sheriff the power to A plaintiff in whose favor a writ of pos- turn him out. State v. Gilbert, 2 Bay. session had issued rode about the lands (S. Car.) 355. with the sheriff, who said to him: “ Here Removal of Cestui que Trust in Action is your land; I put you in possession.” Against Trustee.- A held a written lease But the tenants who were in possession as trustee of B, who was in possession. were not dispossessed, nor was any notice Held, a writ of possession, obtained by given them to yield possession. Helil, the landlord in forcible entry and detainer not an execution of the writ. Lankford against A, that the officer was bound 10 v. Green, 62 Ala. 314.

remove B. Danforth V. Stratton, 77 1. McHose v. South St. Louis Fire Me. 200. Ins. Co., 4 Mo. App. 514.

Proof of Lawfulness of Possession. In unlawful entry and detainer, the Such a writ, without the record, may be complaint upon which the original writ proof of the lawfulness of a party's pos. was issued by the justice, under W. Va session; otherwise, the return of the officer Acts 1864. $13, may be looked to by the thereon. Thomasson v. White, 6 Baxt. court in aid of the description of the (Tenn.) 148. premises contained in the writ. Moore 3. Wallace v. Hall, 22 Kan. 271. 7. Douglass. 14 W. Va. 708.

4. The provision in the statute that a 2. In the absence of any showing to writ of possession shall not be executed the contrary, one not specially named in unless a bond is given to the sheriff a writ of possession, but in possession of other person" does not refer to the de. the premises when the action of forcible fendant in the action as such “other perentry was brought, will be presumed to son," but to the sheriff or other officer have occupied the land pendente lite, and to whom the writ is directed. Mitcheli to be a proper subject for removal under v. Gibson, 14 Ark. 224. the writ. Thomasson v. White, 6 Baxt. 5. Gill 2". Jones, 57 Miss. 367. (Tenn.) 148.

6. Robertson 9. Williams, 6 How. Servants of a defendant in forcible (Miss.) 579.

or

appeal can be taken from a verdict in an action against a tenant for holding over. 1 In Minnesota, there is no appeal from an order overruling a demurrer from the municipal court of Minneapolis to the supreme court;? and, in Ohio, the supreme court cannot directly review the proceedings of a justice of the peace, even though leave to file a petition in error in the common pleas may have been refused.3 An appeal, however, being a valuable right and in furtherance of justice, the laws relating to it are to be liberally construed.4

(6) Questions Considered. It is a general rule that objections not taken in the court below will not be noticed on error or appeal unless the complaint is so defective that it cannot be made the foundation for a judgment. The failure of the record to show the formal organization of the court below cannot be considered ;6 and, where there is evidence on both sides in the court below, the court on appeal will not usually interfere.” The general rule seems to be that all questions which affect the substantial rights of the parties are to be considered in other cases in general.8 1. Carter v. Howell, 26 Ga. 397.

Where proceedings commenced before 2. Gray v. Hurley, 28 Minn. 388. a justice of the peace, on forcible entry

3. Carroll v. O'Conner, 25 Ohio St. and detainer, are removed to an appel617.

late court, the case must be tried upon 4. State v. Clark (Neb.), 38 N. W. the record without a declaration or jury; Rep S32.

and the justice has no right to enter, upon Repeals by Implication not Allowed.- his minutes, other evidence than such as The rule not allowing repeals by im is male ground for exceptions. Aldridge plication, unless in a case of plain and v. Hightower, 4 Port. (Ala.) 418. unavoidable repugnancy, applied to the Errors Not Excepted to.- When both 7 ennessee Code, SS 3363, 3373a, and parties acquiesce in the instructions of 3373b, regulating the possession on an the circuit court, the supreme court will appeal in an action for unlawful detainer, not consider them on appeal. Johnson Buchanan v. Robinson, 59 Tenn. 147. v. West, 41 Ark. 535.

Affect of Change of Action by Amend- 6. Brown v. Ashford, 56 Miss. 677. ment. - Where an action of forcible entry 7. Review.-Where, on a jury trial for and detainer has been so altered, by forcible entry and detainer, defendant striking out a part of the complaint, as admits the entry and force, but sets up to resolve it into an action for possession that plaintiff was holding as his (defendand damages, and the appellee obtained ani's) tenant, and there is evidence both and is maintaining a decree obtained in ways on this point, mainly by the parties the latter form, he cannot object that, themselves, as witnesses, and the jury being originally framed as an action of find for plaintiff under an instruction forcible entry and detainer, the court has that the case turns upon the nature of no jurisdiction on appeal. Mullen 2'. plaintiff's holding, whether in his own Wine, 9 Colo. 167.

right or as tenant, a refusal to grant a Where Brought to Trial. — Appeals to new trial, is not erroneous, unless the the district court, in forcible entry and verdict is most manifestly contrary 10 detainer proceedings, in Ramsey county, the evidence. Monroe v. Carter, 48 Ga. Minn., may properly be brought to trial 174. at the special terms held every Saturday 8. Question of the Statute of Limitations. under and in pursuance of the order of — Where the jury find a verdict for the said court, made on March 11, 1876, plaintiff in an action of unlawful detainer, and subsequently filed and entered nunc brought before a justice, and taken by pro tunc as of that date under said court's appeal to the circuit court, if it is proven direction. Hoffman Parsons, 27 on the trial that the defendant had been Minn. 236.

in the actual continuous possession of 5. Hilliard 2'. Carr, 6 Ala. 557; Clay the land in controversy for more than 94. Clay, 7 Tex. 250; Hightown i'. Filz- two years, and it does not appear that patrick, 42 Ala. 597.

the cause of action arose within two

1

(c) The Relief Granted.-In an action of forcible entry and detainer, upon reversal on appeal, the cause may be remanded, and a new trial may be ordered ;? or, where a judgment is erroneous only as to some particular part, and proper as to the balance, it may be corrected as to that part and affirmed as to the residue.3

(d) Review by Certiorari and other Writs.-In some States the review may be effected by means of the writ of certiorari or recordari,4 in some of which this remedy would seem to be exclusive, 5 and in others either the appeal or the review may be taken. The

novo.

error.

years prior to the commencement of the 2. In proceedings under the act of asaction, it is the duty of the court, on the sembly, after verdict for the plaintiff motion of the defendant, to set aside the the court may grant a new trial to the verdict and direct a new trial. Hays v. defendant; and, upon the dissolution of Allizer, 24 W. Va. 505.

the court, the plaintiff must proceed de Denial of Motion to Remand. --Over.

Hammock v. Wilson, 2 Va. Cas. ruling a motion in an action of forcible 321. entry and detainer, that the cause be The circuit court, having set aside the remanded pursuant to 2 Indiana Rev. proceeding in a case of forcible entry and Stat., 607, § 12, to be certified by the jus detainer in Arkansas, brought there by tice of the peace to the circuit court, as certiorari, can rightfully order a trial de to the title of real estate having been put novo. Nicks v. Rogers, Hempst. 80. This in issue, is not a ground for a new trial; decision was an affirmance in an equal it must be assigned independantly in the division of the court. supreme court, as

Tibbetts v. 3. A judgment in forcible entry and O'Connell, 66 Ind. 171.

detainer, which is erroneous in regard Failure to Fill Recognizance.—Where to costs, will not be wholly reversed on the defendant in a process of forcible that account, but will be corrected as to entry and detainer asserts no right in costs and affirmed as to the residue. the premises except by virtue of a con- Smith v. Williamson, 11 N. J. L. 313. tract with the complainant, he cannot be 4. People 7'. Smith, 24 Barb. (N. Y.) defaulted in the appellate court for want 16; People 7. Runkle, 9 Johns. (N. Y) of the recognizance called for by Maine 147; Lane z'. Marshall, Mart. &Y.(Tenn.) Rev. Stat., ch. 94, $ 6, when the case has 255: Knapp v. Gamsby, 47 Mich. 375; been tried in the court below, and judg- Smith v. Williamson, 11 N. J. L. 315; ment rendered in his favor there. Sweet- Walter v. McSherry, 21 Mo. 76: Newton ser v. McKenney, 65 Me. 225.

v. Leary, 64 Wis. 190; Day 2. Johnson, Failure to Take Advantage of Plaintiff's Coldw. (Tenn.) Entry.-A defendant, after appealing to 5. No appeal lies from erroneous prothe court of common pleas from a judg. ceedings in forcible entry and detainer; ment rendered against him by a justice the remedy is by writ of recordari or of of the peace in a suit on Rev. Stat., ch. false judgment. Rev. Code, ch. 62, $ 23, 101, $ 4, to recover possession of a tene- applies only to appeals from the ordinary ment voluntarily removed from the ten- subjects of jurisdiction of justices of the emant, and the plaintiff thereupon took peace. Grissett v. Smith, Phill. (N. Car.) and kept possession thereof. The de

L. 164. fendant afterwards entered his appeal 6. Knapp v. Gamsby, 47 Mich. 375, and was defaulled. Held, that the plain- and see Griffin v. Griffin, Phill. (N. Car.) tiff was entitled to judgment, the defend- L. 167. ant not having taken advantage, at the In an action of forcible detainer, at term when he entered his appeal, of the any time before the writ of possession is plaintiff's entry and possession, by way executed either party may take the cause of plea puis darrein continuance. Cros- to the circuit court by certiorari, and an by v. Wentworth, 7 Metc. (Mass.), 10. appeal will also lie within the two days

Failure to Prosecute.--In forcible en- allowed by law, as in other cases; and it try and detainer cases, where the detainer is sufficient reason, for not appealing. fails to prosecute his appeal in the circuit that the party was unable to give the court, the judgment of the justice may security required within two days, as be affirmed. Feedler v. Schroeder, 59 required by law. Day v. Johnson, 4 Mo. 364.

Coldw. (Tenn.) 281. 1. Turnley v. Stinson, i Ala. 456. Mandamus will not lie to compel the

granting the ceritorari to review is a matter of course,' and it would be competent for the court to require an additional recog. nizance in a case brought up from a justice, by certiorari, without superseding the old one; 2 but it is not required to do so.3 The court to which the case is taken can only reverse or affirm ; it cannot order a writ of restitution.4 But in some States a retrial may be ordered," and the proceedings may be quashed if irregular.6

(e) Stay of Execution on Appeal.- Pending an appeal, an injunction will not be issued to restrain the execution of a warrant in forcible entry and detainer ;' this object being usually accomplished by an undertaking given by the appellant, for which provision is made in the statutes of most of the States.8 It is the duty of a justice to approve a proper bond. 9 And defects and ir

county court to enter judgment for treble justice, it will be quashed.

State v. damages in a forcible entry suit appealed Griffin, 71 N. Car. 304. from the decision of a justice of the No exception lies to the refusal of a peace, as the remedy by appeal is suffi- judge in the superior court to suspend cient. Early v. Mannix, 15 Cal. 149. action on motion of an aggrieved defend

1. People v. Runkle, 9 Johns. (N. Y.) ant to dismiss an appeal from a justice's 147.

judgment in forcible entry and detainer, 2. Walter v. McSherry, 21 Mo. 76. to allow him to file a petition for writs of

The statute which directs that a re. certiorari, mandamus, and supersedeas. cognizance be entered into for prosecut. The presiding judge may, in his discreing a certiorari does not apply to cases tion, have the application after the disof forcible entry and detainer. Martin missal and procedendo. Griffin v. Griffin, v. Hillyer, 11 N. J. L. 22.

Phill. (N. Car.) L. 167. 3. A plaintiff who resides in this State, 7. Coster 2'. Van Schaick, 64 How. (N. and brings a certiorari to remove a judg. Y.) Pr. 100. meni rendered against him in an action A tenant against whom a judgment has of forcible entry and detainer will not be been rendered for forcible detainer is not required to file a security for costs, though entitled to have process enjoined for apit is proved that he is unable to pay the peal, unless he has actually taken the apcosts, if the decision is against him. peal. Curd v. Farrar, 47 Iowa, 504. Smith v. Williamson, 11 N. J. L. 315. 8. See State 2'. Clark (Neb.), 38 N. W.

4. Newton 2. Leary, 64 Wis. 190. Rep. 832; Sherrill v. Madry, 6 Lea (Tenn.),

6. In Tennessee. — The act of 1821, ch. 231; Merrill 21. Hinckley, 49 Me. 40: War14. providing for the removal of cases of ner v. Howard, 121 Mass. 82; Coonradt v. forcible entry and detainer, by certiorari, Campbell, 29 Kan. 391; Henrie 2. Buck from the cognizance of a justice of the (Kan.), 18 Pac. Rep. 228; Ladd . Riggle, peace to the circuit court, authorizes a 6 Heisk. (Tenn.) 620; Hurt z'. Dougherty, retrial of the facts in said court by a 3 Sneed (Tenn.), 418. jury. Lane 7. Marshall, Mari. & Y. A defendant in an action of forcible en(Tenn.) 255.

try and detainer cannot dispense with the Reversal on certiorari in forcible entry necessity of giving bond and security for proceedings does not, in Michigan, secure rent, as required by the act of 1842, ch. a new trial, but ends the proceeding. 186, by taking the pauper's oath. Norton The statute provides for an appeal on v. Whitesides, 5 Humph. (Tenn.) 381. which a new trial can be had, as of right. 9. In an action of forcible entry and deKnapp v. Gamsby, 17 Mich. 375.

tainer, where, after judgment, a party de6. People v. Smith, 24 Barb. (N. Y.) sires to appeal to the district court, and a 16.

bond is presented to such justice in proper The finding of the jury, on an inquisi- form, signed by at least two sufficient tion of forcible entry and detainer, before securities, it is the duty of the justice to a justice of the peace, cannot be traversed approve the same, and the sureties on an in the superior court, to which it has been appeal bond need not sigr the same in the carried by recordari. If there be an irreg. presence of the justice. If the justice reularity or error in law in the procetjquires proof of the genuineness of the ings, or if the verdict of the jury be in- signatures, or of the suffi iency of the sufficient to support the judgment of the sureties, he should make it known when

regularities may be corrected by amendment,' or by the substitution of a new undertaking, and the appeal may be dismissed if they are not so corrected.3 The undertaking should usually be for a specific sum ;4 but it need not be for a sufficient sum to cover the rent of the premises pending the litigation." But, in Illinois, the appeal bond must be conditioned for the payment of all rents becoming due, if any, from the commencement of the suit until the determination thereof; and when it is conditioned to pay all rents that may have accrued, and fails to provide for the rents to become due, it is wholly insufficient.6

(f) Liability of Sureties on Undertaking.--Any breach of the conditions of the undertaking-as, a judgment against the petitioner for a certiorari, or a judgment against the appellant-will render the sureties liable." The amount for which the sureties

the bond is received by him, or soon there- statutory bond as to the rents. And if after; otherwise, the objection will be afterwards, on appeal in error to the suwaived. Staie v. Clark (Neb.), 38 N. W. preme court, a bond is given conditioned Rep. 832.

to prosecute said appeal with effect, or, in 1. Appeal Bond.—The Illinois act of case of failure, “ to abide by and perform 1853 allowing amendments to an appeal the judgment of the court in the premises," bond applies to actions of forcible entry the supreme court have no authority to and detainer. In such case the court may give judgment upon the bond for the rents require an additional bond to secure rents accrued pending the appeal, nor to remand accruing previous to the term of the court the cause to the circuit court to have such to which the cause is continued, and, in rents ascertained. Ladd v. Riggle, 6 default of compliance, may dismiss the ap- Heisk. (Tenn.) 620. peal. Rider 2'. Bagley, 47 III. 365.

6. Wood v. Tucker, 66 III. 276. 2. In an action of forcible entry and 7. Judgment against the petitioner for detainer, if the affidavit and recognizance a certiorari in forcible entry and detainer are defective, the appellant has a right to is a breach of the condition to prosecute file sufficient ones within such time as with effect in his bond. By appeal in erwill not delay the other party; and it is ror, the operation of such judgment is suserror for the circuit court to refuse to per- pended; but, if the appeal is abated, the mit it to be done. Hamilton v. Jeffries, judgment revives, and is a breach from the 15 Mo. 617.

day it was rendered; and it is not satisfied 3. Wood v. Tucker, 66 Ill. 276.

by a judgment against the petitioner for 4. Warner v. Howard, 121 Mass. 82. costs, but the defendant may bring an ac

5. Upon an appeal by the defendant tion for breach of the second condition, to from a judgment against him in the cir

damages for the unlawful decuit court in a suit of unlawful detainer, tention.” Hurt v. Dougherty, 3 Sneed the plaintiff moved to dismiss the appeal (Tenn.), 418. for want of an appeal bond in a sufficient Where the condition of a bond is that sum to cover the rent of the premises “ If, upon a further trial of the case, judgpending the litigation, or for a receiver. ment shall be rendered against the deiendHeld, that both motions must be disal- ant, he shall pay double the use and occulowed. Sherrill v. Madry, 6 Lea (Tenn.), pation of said property, pursuant to the

judgment," and the judgment subsequently Where a defendant, in an action of for- rendered against the appellant, in the forcible entry and detainer, adjudged guilty, cible entry action, did not determine the appeals, the recognizance need not require liability for the use and occupation of the payment of such a reasonable rent of the property, no such liability exists or can

as the magistrates shall adjudge,” be enforced against the sureties. Henrie if no rent is adjudged by the magistrates v. Buck (Kan.), 18 Pac. Rep. 228. to be payable. Merrill v. Hinckley, 49 Who May Prosecute Undertaking --The

bond prescribed by the act of 1835, ch. 84, A bond given by the defendant on ap- to be given to the defendant in certiorari peal to the circuit court, conditioned "to in cases of unlawful detainer of land, in pay and satisfy all costs, damages, and order to secure him in costs and damages rents as may be awarded," is not a good for detention, is not a covenant real run

recover

231.

premises

Me, 40.

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