Hass v. Gardner

Warner, C. J. This was a proceeding under the 4,000th section of the Revised Code, to eject an intruder from the possession of land. The defendant filed a counter affidavit, and the proceedings were returned by the sheriff to the next Superior Court. At the May Term of the Court, 1866, the plaintiff demurred to the defendant’s affidavit, upon the ground that the word legal was not in it, the defendant swearing, “ that [478] he does in good faith claim a right to the possession of said land/’ instead of swearing that he does in good faith claim a legal right to the possession of said land, aá the law required him to do. The Court dismissed the defendant’s affidavit, and ordered the sheriff to eject the defendant from the premises and put the plaintiff in possession thereof. When the sheriff went to execute this order of the Court, the defendant tendered to the sheriff another affidavit in legal form, which was received and returned to the May Term of the Court, 1867. The Court decided that the sheriff had no right to take the second affidavit, and ordered him to put the defendant in possession of the premises, as directed by the first order, — to which decision the defendant excepted, and assigns error therefor. The proceeding to eject intruders was intended to be a speedy and summary process — the defendant is to be turned out of possession, unless he “ shall at once tender to the sheriff a counter affidavit, stating that he does in good faith claim a legal right to the possession of said land.” To allow the party in possession of land as a mere intruder, to retain possession by making defective affidavits, would be to defeat the sole object of the statute. The record in this case shows that the defendant retained his possession twelve months at least. Under this section of the Code, when the defendant, in a proceeding against him as an intruder, desires to retain his possession, he must at onee make such an affidavit as the law requires, or he will be turned out, — he will not be allowed to retain possession of the premises under a defective affidavit, and then to file another and still retain possession. There was no error in the judgment of the Court below in this 'case. Let the judgment of the Court below be affirmed.