Mullen v. Wine

Elbert, J. 1. It is objected by counsel for appellee that this is an action of forcible entry and detainer, and that no appeal lies from the county court to this court, under the forcible entry and 'detainer act. Gen. St. 501. A perusal of the complaint leads to the belief that the pleader intended to state a case of forcible entry and detainer, but the court below treated the action as admittedly under chapter 23 of the code, entitled “Actions for Pos-session and Damages.” If the plaintiff insisted upon his action of forcible entry and detainer, we see no legal reason for the ruling of the court sustaining the motion to strike from the complaint the words “with force and arms,” and the words “forcibly” and “forcible.” The plaintiff, however, is not here questioning this ruling, but insisting upon a judgment rendered upon his complaint as it stood after the ruling was made. The effect of striking out the words specified was to destroy whatever pretensions the complaint had as a complaint of forcible entry and detainer, and to leave the action one for “ possession and damages,” under the chapter named. This is the action which the plaintiff prosecuted to final judgment. The subsequent proceedings show a trial under this chapter. The trial is to the court, and the findings and judgment are in accordance with the provisions of section 273, and a “special execution in the nature of a writ of possession ” is awarded, in accordance with the provisions of section 275, Amended Code, 86. Neither the complaint nor the findings support a judgment of [169] forcible entry and detainer. The objection must be overruled. 2. After the motion of the defendant to strike out was sustained, judgment by default was entered against him without a rule upon him to answer. This was error. Both the demurrer and the motion to strike out prevented a default, under the provisions of chapter 10 of the code. The demurrer was overruled, but the motion to strike out was subsequently entertained and allowed. We find no provision of the code authorizing a judgment by default, under such circumstances, in the absence of a rule to answer. We think the defendant should be regarded as standing in the same position as though he had successfully attacked the complaint by demurrer. Even if the order of the court and the circumstances of the case required no formal amendment of the complaint, the necessity for a rule to answer would remain the same. 3. The code makes no provision for the amendment of a pleading where some portion of it, or certain words contained in it, are stricken out on motion. In many cases the effect of such an order would be to reform the pleadings without more. But in this case, as the character of the action was changed, we are of the opinion that there should have been an actual amendment to the complaint, in accordance with the provisions of section 58 of the code. 4. The order specifies imperfectly the words to be stricken out, and counsel were remiss in not seeing to it that it was properly entered. The intention of the court, however, is reasonably plain. The motion specifies the objectionable words, and the line and page where they occur. This motion was “ sustained,” and the words “ force, and force of arms,” “'described in said motion,” were ordered stricken out. This wa,s substantially an order of the court to strike from the complaint the words “described in said motion;” and as the motion was specific, the pleader would have found no difficulty [170] in complying with the order. As a matter of good practice, however, such an order should specify particularly and correctly the matter to be stricken from the pleading. Judgment reversed. Reversed.