Hamrick v. Darnell

Warner, Judge. This ease came before the Court below on a certiorari from a Justice’s Court, alleging certain errors to have been committed on the trial of a case of “forcible entry and detainer,” under the provisions of the Code. On the hearing of the certiorari both parties excepted to the rulings of the Court. The Court below decided that the Constitution of 1868, having recognized and adopted the Code called Irwin’s Code, did not desti'oy or abolish the right to sue out and try cases of forcible entry and detainer, as heretofore practiced in this State. Upon this point in the case we affirm the judgment of the Court. It does not appear in the record how the jury were drawn for the trial of the case, but it does appear that no particular juror was objected to on the ground that he was not an upright, intelligent juror. The Court below decided that, as there was no evidence going to show how the jury was selected, summoned and impanneled, the legal presumption was, that they were properly selected, summoned and impanneled. Inasmuch as the Act of 1869 relates exclusively to [437] the selection of jurors for the Superior Courts, and inasmuch as the Greneral Assembly have not provided by law for the selection of jurors for the trial of cases of forcible entry and detainer, by Justices of the Peace, under the Constitution of 1868, the jury may be selected under the law as provided by the Code for that purpose, so they are upright and intelligent jurors, which is not inconsistent with the Constitution of 1868, and we affirm the judgment of the Court below on this point in the case. The Court also decided that there was not sufficient evidence, tinder the law, to have authorized the jury to find a verdict for either a “forcible entry” or a “forcibledetainer” of the land by the defendant, Darnell, as against the plaintiff, Hamrick. In looking through the evidence contained in the record, we think there was sufficient evidence to have authorized the jury to have found a verdict, under the law, for a “forcible entry;” and if the jury had so found, the Court below should not have set aside their verdict. But the jury found a verdict for “forcible detainer” only, and thereby negatived the fact that the entry by the defendant on the land was forcible and without authority of law, and this Court cannot now assume that it was so, as there is sufficient evidence in the record to sustain the verdict, which was conflicting in regard to that point in the case; of which the jury, according to the repeated rulings of this Court, were the proper judges. Does the evidence in the record show that the detainer of the possession of the land by the defendant, was forcible and without authority of law? The only evidence upon that point is, that the agent of the plaintiff notified the defendant to quit the land, and the defendant replied that he should not do so; that there was no violent word or act on the part of defendant, or any threat or offer to do either in keeping possession of the land; that defendant had moved one of the houses on the land. “Forcible detainer is the violently keeping possession of lands and tenements with menaces, [438] force and arms, and without authority of lawCode, 4452. The verdict of the jury rebuts the allegation that the entry of the defendant on the land was forcible and without authority of law, and there is no evidence in the record that the detainer of the possession of the land by the defendant was forcible, within the true intent and meaning of the law applicable to such cases. The mere defending a suit at law for the possession of the land by the defendant, did not amount to a forcible detainer as the Justice charged the jury on the trial. There was no error in the judgment of the Court below in sustaining the certiorari and setting aside the verdict, on the statement of facts disclosed by the record, and we affirm the judgment of the Court on that point. But instead of awarding a final judgment in the case, we direct that a new trial be had of the whole case before another jury. Judgment affirmed and a new trial ordered.