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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.1 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 remove 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 ; and, in California, no

possession. The test is that the plaintiff must be so established in his possession, by the officer, that any person entering upon him, se invito, will be indictable for a forcible entry. The officer is not bound to remove the tenant's goods, but may do so as the agent of the plaintiff. Union Township v. Bayliss, 40 N. J. L. 60.

Co tenants. In an action of forcible entry and detainer against a co-tenant, the writ of restitution should only put the plaintiff in joint possession with the defendant. McHose v. South St. Louis Fire Ins. Co.. 4 Mo. App. 514.

A plaintiff in whose favor a writ of possession had issued rode about the lands with the sheriff, who said to him: "Here is your land; I put you in possession." But the tenants who were in possession were not dispossessed, nor was any notice given them to yield possession. Held, not an execution of the writ. Lankford v. Green, 62 Ala. 314.

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entry and detainer may be dispossessed
under the writ of restitution.
The non-
residence of the defendant is immaterial.
De Graw v. Prior, 68 Mo. 158.

On a warrant of forcible detainer, the tenant cannot resist restitution to him from whom he acquired possession. Ball v. Lively, 2 J. J. Marsh. (Ky.) 181.

In South Carolina.-A defendant, having pleaded guilty to an indictment for forcible entry and detainer, his son-in-law took possession of the premises before a writ of restitution issued; which, when issued, gave to the sheriff the power to turn him out. State v. Gilbert, 2 Bay. (S. Car.) 355.

Removal of Cestui que Trust in Action Against Trustee.-A held a written lease as trustee of B, who was in possession. Held, a writ of possession, obtained by the landlord in forcible entry and detainer against A, that the officer was bound to remove B. Danforth v. Stratton, 77

1. McHose v. South St. Louis Fire Me. 200. Ins. Co.. 4 Mo. App. 514.

In unlawful entry and detainer, the complaint upon which the original writ was issued by the justice, under W. Va. Acts 1864. 13, may be looked to by the court in aid of the description of the premises contained in the writ. Moore v. Douglass. 14 W. Va. 708.

2. In the absence of any showing to the contrary, one not specially named in a writ of possession, but in possession of the premises when the action of forcible entry was brought, will be presumed to have occupied the land pendente lite, and to be a proper subject for removal under the writ. Thomasson v. White, 6 Baxt. (Tenn.) 148.

Proof of Lawfulness of Possession.Such a writ, without the record, may be proof of the lawfulness of a party's pos session; otherwise, the return of the officer thereon. Thomasson v. White, 6 Baxt. (Tenn.) 148.

3. Wallace v. Hall, 22 Kan. 271.

or

4. The provision in the statute that a writ of possession shall not be executed unless a bond is given to the sheriff other person" does not refer to the defendant in the action as such "other person," but to the sheriff or other officer to whom the writ is directed. Mitcheli v. Gibson, 14 Ark. 224.

5. Gill . Jones, 57 Miss. 367.

6. Robertson 7. Williams, 6 How.

Servants of a defendant in forcible (Miss.) 579.

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. An appeal, however, being a valuable right and in furtherance of justice, the laws relating to it are to be liberally construed.4

(b) 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.R

1. Carter v. Howell, 26 Ga. 397. 2. Gray v. Hurley, 28 Minn. 388. 3. Carroll v. O'Conner, 25 Ohio St. 617.

4. State v. Clark (Neb.), 38 N. W. Rep 832.

Repeals by Implication not Allowed.The rule not allowing repeals by im plication, unless in a case of plain and unavoidable repugnancy, applied to the Tennessee Code, SS 3363, 3373a, and 3373b, regulating the possession on an appeal in an action for unlawful detainer. Buchanan v. Robinson, 59 Tenn. 147.

Affect of Change of Action by Amendment. Where an action of forcible entry and detainer has been so altered, by striking out a part of the complaint, as to resolve it into an action for possession and damages, and the appellee obtained and is maintaining a decree obtained in the latter form, he cannot object that, being originally framed as an action of forcible entry and detainer, the court has no jurisdiction on appeal. Mullen v Wine, 9 Colo. 167.

Where Brought to Trial.-Appeals to the district court, in forcible entry and detainer proceedings, in Ramsey county, Minn., may properly be brought to trial at the special terms held every Saturday under and in pursuance of the order of said court, made on March 11, 1876, and subsequently filed and entered nunc pro tunc as of that date under said court's direction. Hoffman v. Parsons, 27 Minn. 236.

5. Hilliard v. Carr, 6 Ala. 557; Clay 7. Clay, 7 Tex. 250; Hightown 7. Fitzpatrick, 42 Ala. 597.

Where proceedings commenced before a justice of the peace, on forcible entry and detainer, are removed to an appellate court, the case must be tried upon the record without a declaration or jury; and the justice has no right to enter, upon his minutes, other evidence than such as is made ground for exceptions. Aldridge 7. Hightower, 4 Port. (Ala.) 418.

Errors Not Excepted to.-When both parties acquiesce in the instructions of the circuit court, the supreme court will not consider them on appeal. Johnson v. West, 41 Ark. 535.

6. Brown v. Ashford, 56 Miss. 677. 7. Review. Where, on a jury trial for forcible entry and detainer, defendant admits the entry and force, but sets up that plaintiff was holding as his (defendant's) tenant, and there is evidence both ways on this point, mainly by the parties themselves, as witnesses, and the jury find for plaintiff under an instruction that the case turns upon the nature of plaintiff's holding, whether in his own right or as tenant, a refusal to grant a new trial, is not erroneous, unless the verdict is most manifestly contrary to the evidence. Monroe v. Carter, 48 Ga. 174.

8. Question of the Statute of Limitations. Where the jury find a verdict for the plaintiff in an action of unlawful detainer, brought before a justice, and taken by appeal to the circuit court, if it is proven on the trial that the defendant had been in the actual continuous possession of the land in controversy for more than two years, and it does not appear that the cause of action arose within two

(c) The Relief Granted.-In an action of forcible entry and detainer, upon reversal on appeal, the cause may be remanded, 1 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,1 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

years prior to the commencement of the action, it is the duty of the court, on the motion of the defendant, to set aside the verdict and direct a new trial. Hays v. Altizer, 24 W. Va. 505.

Denial of Motion to Remand.--Overruling a motion in an action of forcible entry and detainer, that the cause be remanded pursuant to 2 Indiana Rev. Stat., 607, § 12, to be certified by the justice of the peace to the circuit court, as to the title of real estate having been put in issue, is not a ground for a new trial; it must be assigned independantly in the supreme court, as error. Tibbetts v. O'Connell, 66 Ind. 171.

Failure to Fill Recognizance.-Where the defendant in a process of forcible entry and detainer asserts no right in the premises except by virtue of a contract with the complainant, he cannot be defaulted in the appellate court for want of the recognizance called for by Maine Rev. Stat., ch. 94, § 6, when the case has been tried in the court below, and judgment rendered in his favor there. Sweetser v. McKenney, 65 Me. 225.

Failure to Take Advantage of Plaintiff's Entry. A defendant, after appealing to the court of common pleas from a judgment rendered against him by a justice of the peace in a suit on Rev. Stat., ch. 104, 4, to recover possession of a tenement voluntarily removed from the tenemant, and the plaintiff thereupon took and kept possession thereof. The defendant afterwards entered his appeal and was defaulted. Held, that the plaintiff was entitled to judgment, the defendant not having taken advantage, at the term when he entered his appeal, of the plaintiff's entry and possession, by way of plea puis darrein continuance. Crosby v. Wentworth, 7 Metc. (Mass.), 10.

Failure to Prosecute.-In forcible entry and detainer cases, where the detainer fails to prosecute his appeal in the circuit court, the judgment of the justice may be affirmed. Feedler v. Schroeder, 59 Mo. 364.

1. Turnley v. Stinson, I Ala. 456.

2. In proceedings under the act of assembly, after verdict for the plaintiff the court may grant a new trial to the defendant; and, upon the dissolution of the court, the plaintiff must proceed de novo. Hammock v. Wilson, 2 Va. Cas. 321.

The circuit court, having set aside the proceeding in a case of forcible entry and detainer in Arkansas, brought there by certiorari, can rightfully order a trial de novo. Nicks v. Rogers, Hempst. 80. This decision was an affirmance in an equal division of the court.

3. A judgment in forcible entry and detainer, which is erroneous in regard to costs, will not be wholly reversed on that account, but will be corrected as to costs and affirmed as to the residue. Smith v. Williamson, 11 N. J. L. 313.

4. People v. Smith, 24 Barb. (N. Y.) 16; People v. Runkle, 9 Johns. (N. Y) 147; Lane v. Marshall, Mart. &Y. (Tenn.) 255; Knapp v. Gamsby, 47 Mich. 375; Smith v. Williamson, 11 N. J. L. 315; Walter v. McSherry, 21 Mo. 76; Newton v. Leary, 64 Wis. 190; Day v. Johnson, 4 Coldw. (Tenn.) 231.

5. No appeal lies from erroneous proceedings in forcible entry and detainer; the remedy is by writ of recordari or of false judgment. Rev. Code, ch. 62, § 23, applies only to appeals from the ordinary subjects of jurisdiction of justices of the peace. Grissett v. Smith, Phill. (N. Car.) L. 164.

6. Knapp v. Gamsby, 47 Mich. 375, and see Griffin v. Griffin, Phill. (N. Car.) L. 167.

In an action of forcible detainer, at any time before the writ of possession is executed either party may take the cause to the circuit court by certiorari, and an appeal will also lie within the two days allowed by law, as in other cases; and it is sufficient reason, for not appealing. that the party was unable to give the security required within two days, as required by law. Day v. Johnson, 4 Coldw. (Tenn.) 281.

Mandamus will not lie to compel the

granting the ceritorari to review is a matter of course,1 and it would be competent for the court to require an additional recognizance 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. But in some States a retrial may be ordered, and the proceedings may be quashed if irregular.

(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. It is the duty of a justice to approve a proper bond. And defects and ir

county court to enter judgment for treble
damages in a forcible entry suit appealed
from the decision of a justice of the
peace, as the remedy by appeal is suffi-
cient. Early v. Mannix, 15 Cal. 149.
1. People v. Runkle, 9 Johns. (N. Y.)

147.

2. Walter v. McSherry, 21 Mo. 76.

The statute which directs that a recognizance be entered into for prosecuting a certiorari does not apply to cases of forcible entry and detainer. Martin v. Hillyer, 11 N. J. L. 22.

3. A plaintiff who resides in this State, and brings a certiorari to remove a judg ment rendered against him in an action of forcible entry and detainer will not be required to file a security for costs, though it is proved that he is unable to pay the costs, if the decision is against him. Smith v. Williamson, 11 N. J. L. 315.

4. Newton v. Leary, 64 Wis. 190.

5. In Tennessee. The act of 1821, ch. 14. providing for the removal of cases of forcible entry and detainer, by certiorari, from the cognizance of a justice of the peace to the circuit court, authorizes a retrial of the facts in said court by a jury. Lane 7. Marshall, Mart. & Y. (Tenn.) 255.

Reversal on certiorari in forcible entry proceedings does not, in Michigan, secure a new trial, but ends the proceeding. The statute provides for an appeal on which a new trial can be had, as of right. Knapp . Gamsby, 47 Mich. 375.

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justice, it will be quashed. State v. Griffin, 71 N. Car. 304.

No exception lies to the refusal of a judge in the superior court to suspend action on motion of an aggrieved defendant to dismiss an appeal from a justice's judgment in forcible entry and detainer, to allow him to file a petition for writs of certiorari, mandamus, and supersedeas. The presiding judge may, in his discretion, have the application after the dismissal and procedendo. Griffin v. Griffin, Phill. (N. Car.) L. 167.

7. Coster 2. Van Schaick, 64 How. (N. Y.) Pr. 100.

A tenant against whom a judgment has been rendered for forcible detainer is not entitled to have process enjoined for appeal, unless he has actually taken the appeal.

Curd 7. Farrar, 47 Iowa, 504.

8. See State 7. Clark (Neb.), 38 N. W. Rep. 832; Sherrill v. Madry, 6 Lea (Tenn.), 231; Merrill v. Hinckley, 49 Me. 40: Warner v. Howard, 121 Mass. 82; Coonradt v. Campbell, 29 Kan. 391; Henrie v. Buck (Kan.), 18 Pac. Rep. 228; Ladd v. Riggle, 6 Heisk. (Tenn.) 620; Hurt v. Dougherty, 3 Sneed (Tenn.), 418.

A defendant in an action of forcible entry and detainer cannot dispense with the necessity of giving bond and security for rent, as required by the act of 1842, ch. 186, by taking the pauper's oath. Norton v. Whitesides, 5 Humph. (Tenn.) 381.

9. In an action of forcible entry and detainer, where, after judgment, a party de

6. People v. Smith, 24 Barb. (N. Y.) sires to appeal to the district court, and a

The finding of the jury, on an inquisition of forcible entry and detainer, before a justice of the peace, cannot be traversed in the superior court, to which it has been carried by recordari. If there be an irreg ularity or error in law in the proceedings, or if the verdict of the jury be insufficient to support the judgment of the

bond is presented to such justice in proper form, signed by at least two sufficient securities, it is the duty of the justice to approve the same, and the sureties on an appeal bond need not sigr the same in the presence of the justice. If the justice requires proof of the genuineness of the signatures, or of the sufficiency of the sureties, he should make it known when

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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. 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."

(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 thereafter; otherwise, the objection will be waived. State v. Clark (Neb.), 38 N. W. Rep. 832.

1. Appeal Bond.-The Illinois act of 1853 allowing amendments to an appeal bond applies to actions of forcible entry and detainer. In such case the court may require an additional bond to secure rents accruing previous to the term of the court to which the cause is continued, and, in default of compliance, may dismiss the appeal. Rider 2. Bagley, 47 Ill. 365.

2. In an action of forcible entry and detainer, if the affidavit and recognizance are defective, the appellant has a right to file sufficient ones within such time as will not delay the other party; and it is error for the circuit court to refuse to permit it to be done. Hamilton v. Jeffries, 15 Mo. 617.

3. Wood v. Tucker, 66 Ill. 276.

4. Warner v. Howard, 121 Mass. 82. 5. Upon an appeal by the defendant from a judgment against him in the circuit court in a suit of unlawful detainer, the plaintiff moved to dismiss the appeal for want of an appeal bond in a sufficient

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statutory bond as to the rents. And if afterwards, on appeal in error to the supreme court, a bond is given conditioned to prosecute said appeal with effect, or, in case of failure, " to abide by and perform the judgment of the court in the premises," the supreme court have no authority to give judgment upon the bond for the rents accrued pending the appeal, nor to remand the cause to the circuit court to have such

rents ascertained. Ladd 7. Riggle, 6 Heisk. (Tenn.) 620.

6. Wood v. Tucker, 66 Ill. 276.

7. Judgment against the petitioner for a certiorari in forcible entry and detainer is a breach of the condition to prosecute with effect in his bond. By appeal in error, the operation of such judgment is suspended; but, if the appeal is abated, the judgment revives, and is a breach from the day it was rendered; and it is not satisfied by a judgment against the petitioner for costs, but the defendant may bring an action for breach of the second condition, to recover damages for the unlawful detention." Hurt v. Dougherty, 3 Sneed (Tenn.), 418.

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Where the condition of a bond is that "If, upon a further trial of the case, judgment shall be rendered against the defendant, he shall pay double the use and occupation of said property, pursuant to the judgment," and the judgment subsequently rendered against the appellant, in the forcible entry action, did not determine the liability for the use and occupation of the property, no such liability exists or can be enforced against the sureties. Henrie v. Buck (Kan.), 18 Pac. Rep. 228.

Who May Prosecute Undertaking. —The bond prescribed by the act of 1835, ch. 84, to be given to the defendant in certiorari in cases of unlawful detainer of land, in order to secure him in costs and damages for detention, is not a covenant real run

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