Treat v. Forsyth

Rhodes, C-. J. delivered the opinion of the Court, Temple, J., Crooeett, J., and Wallace, J., concurring: The complaint states, in the same count, a cause of action for a forcible entry and detainer, such as is mentioned in the first section of the Fóreible Entry Act of 1866 (Stats. 1865-6, p. 768) ; and also a cause of action, for an entry upon the premises during the absence of the plaintiff, and a refusal to surrender the same after a demand made therefor, etc., which is declared by the third section of that Act to constitute a forcible detainer. As no demurrer was interposed for the misjoinder, the objection is waived. The defendants, in their points, do not insist on their objection to the judgment roll, which was admitted in evidence, and therefore it will not now be considered. The remaining grounds of their motion for a new trial will be noticed in the order in which they were presented. The first specification of the insufficiency of the evidence to sustain the implied findings — no finding having been filed— is, in substance, that the evidence fails to show that the plaintiff was in possession of the premises at the time of the entry of the defendants. The evidence on this point is [488] conflicting, and, therefore, tbe finding will not be disturbed. Tbe specification tbat tbe evidence failed to sbow tbat tbe plaintiff was in possession at tbe commencement of tbe action, if read literally, is fully borne out by tbe record ; but it is difficult to appreciate tbe merit of tbe point; for bad tbe evidence shown tbat tbe plaintiff was in possession, be certainly would bave failed in tbe action. Tbe second specification is tbat tbe evidence fails to sbow a forcible or unlawful entry by tbe defendants. Tbe plaintiff having alleged an entry during bis absence, and a demand for tbe surrender of tbe premises, as provided for in tbe third section of tbe Act, it was not incumbent onbim to prove an entry which was in fact forcible. Tbe entry proven was clearly unlawful, in view of tbe evidence already alluded to, tending to sbow tbe plaintiff’s possession at tbe time of tbe defendant’s entry, Tbe third specification is, tbat there was no evidence of tbe forcible or unlawful bolding of tbe possession by tbe defendants. Tbe answer to tbe second specification is applicable, also, to this. Tbe defendants were shown to be in possession of tbe premises, and their entry having been unlawful, and nothing thereafter having occurred to give them tbe right of possession as-against tbe plaintiff, their bolding was unlawful. Tbe fourth and last specification is, “ tbat tbe findings and judgment should bave been for tbe defendants instead of for tbe plaintiff.” This is not a specification in any sense, and is utterly useless as a ground of tbe motion for a new 'trial in any case whatsoever. Judgment affirmed-.