Tibbetts v. O'Connell

Worden, C. J. This was an action by the appellee, against the appellauts. for the forcible entry and detention of certain real estate, commenced before a justice of the peace, and appealed to the circuit court-. In the latter court the case was tried by the court, who found for the plaintiff and rendered judgment accordingly. There is but one error assigned, which is, that- the court below erred in overruling the appellants’ motion for a new trial. v The following were the reasons filed for a new trial: “1. For irregularity in the proceedings of the court, by which the party was prevented from having a fair trial, in overruling the motion of the defendants to remand the cause to the justice of the peace from whom it' was appealed, as shown by the bill of exceptions Uo. 1, heretofore filed herein; [173] “ 2. That the decision of the court herein is not sustained by sufficient evidence; “ 3. That the decision of, the court herein is contrary to law.” The plaintiff in the action recovered before the justice of the peace, and the defendants appealed to the circuit court. In the latter court the defendants, before trial, moved, as is shown by the bill of exceptions referred to, to remand the cause to the justice, in order that the. same might be certified to the circuit court under the provisions of sec. 12, 2 R. S. 1876, p. 607, because — “ 1st. The title to real estate was properly put in issue in the cause. before the justice, upon the answers and pleadings, supported by affidavit, and the justice, though, required by the defendants to certify the cause, refused to do so, and compelled a trial before him .; “ 2d. The justice had no jurisdiction to try the cause’, for the reason that the title to land was put in issue by pleas supported by affidavit.” The court overruled this motion, and the appellants ex'cepted. The overruling of the motion is not made the subject of an independent assignment of error, as we think it should have been, in order to raise any question here as to the correctness of the ruling. Whether the ruling was correct or otherwise, it was not such an one as is made a ground for a new trial. Had it been, the question involved in it would have been properly raised by the motion that was made for a new trial, and the assignment of error upon the overruling of that motion. The first clause of the statute providing for what causes 'new trials may be granted is the only one that has any semblance of application to such case. It specifies, as causes: “ Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or [174] abuse of discretion, by which the party was prevented from having a fair trial.” 2 R. S. 1876, p. 179, sec. 352. The manner in which the case came into the circuit court, whether by appeal or on the certificate of the justice on the ground that the title to land was put in issue, could have had nothing to do with the fairness of the trial. As fair a trial could be had in the one case as in the other. We can not say that the finding of the court was not sustained by the evidence, or was contrary to law. The evidence, to be sure, does not make out a very clear case of forcible entry, but it tended to establish such case, and the finding is not so clearly wrong as to call for any interference with it by this court. The judgment below is affirmed, with costs. Note. — IIowk, J., was absent when this cause was considered.