Wright v. Lyle

ORMOND, J. The third, fourth and fifth assignments of error, which question the regularity of the process, the return of the sheriff and the form of the complaint, if well taken cannot now be considered. By going to trial without objection, all these defects if they exist, were waived, and cannot now be urged. It cannot admit of question that the magistrate has power to grant a new trial in a case of forcible entry and detainer. The power to enter judgment upon the verdict of a jury supposes the right to consider whether the verdict is supported by the testimony. Many other cases might be supposed which wóuld render it improper to render judgment, and which could only be redressed by granting a new trial; but we consider the point too clear to require elucidation. The evidence to which it is stated the defendant demurred, was a lease executed by him to the plaintiff for the premises in controversy. This was certainly competent testimony to shew the right of the plaintiff to the possession of the premises •which the complaint alledges he had, and which we must presume was proved. By the term demurred is probably meant that the defendant objected to its introduction as evidence; be the objection however what it might, it was properly overruled. The charges asked for, suppose that there can be no unlawful detainer except where a tenancy exists, or where the defendant is in collusion with or holding under a tenant. The third section of the act regulating this proceeding, [Aik. Dig. 303,] declares that where an entry has been peaceable, and af-terwards kept by strong hand, it will be a forcible detainer. What the evidence was in this case, we are not informed, as it is not set out in the record, but the complaint states that [115] the plaintiff was in possession of the premises, &c. and that “ the defendant unlawfully entered thereon, and forcibly and unlawfully keeps and detains the possession of the said land.-'’ If, therefore, the defendant obtained peaceable possession of the premises, his refusal to yield the possession on demand, and forcibly retaining it, would be a forcible detainer. Nor was it necessary in such a case, that any demand to quit should be made in writing, that is only necessary where there was a previous tenancy, under which the possession was first acquired, which is not the case here. The first assignment of error, that the premises are not sufficiently described, must be sustained. The description in the complaint of the premises, the possession of which is sought to be recovered, is “ a certain messuage and parcel of land, containing thirty acres,be the same more or less, adjoining Thomas B. Watts and others, in the county of De Kalb.” In the case of Sturdevant v. Murrell, [8 Porter, 322,] we held, “ that in the action of trespass to try title, the declaration should describe the land in controversy with so much particularity and precision as will inform the defendant what he is to defend against, and the Court for what it is called on to render judgment.” We can perceive no reason why the same rule should not apply to the action of forcible entry and detainer, and in this case, as in tliat cited, the description is altogether vague and uncertain, and conveys no distinct or definite idea of the land sought to be recovered; but as no objection was made in the Court below to the complaint, none would be allowed here, if the verdict and judgment contained such a description as would identify the land recovered with reasonable certainty, and enable the sheriff to put the party in possession, without danger of trespassing on the rights of others, as was held in the case just cited. The verdict of the jury merely finds the defendant guilty, “ in manner and form as complained of,” and the judgment of the court is that the “ plaintiff recover of defendant possession of his place.” The defective complaint is not therefore aided by the verdict or judgment, and for this error the judgment is reversed.