Shaffer v. Austin

[237] The opinion of the court was delivered by Smith, J. : The nunc pro tunc order of the district court by which the original, judgment in the ejectment action was supplemented ■ by adding thereto an order for a writ of assistance in favor of Shaffer was without force and not warranted by the pleadings. The very nature of the action in which the order was made recognized the possession of Shaffer. Its sole object was to dispossess him. The latter, also, asserted his occupancy of the land through Creamer, his tenant, and for this reason he was substituted by the court for the tenant as defendant in the ejectment suit. With this recognition of his initial status by both parties to the . action, any order for a writ of assistance in Shaffer’s behalf, after judgment in his favor, was beyond the issues in' the case and void (Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, 62 Am. St. Rep. 609.) • On the trial of the present case the jury found that the writ of assistance, under which plaintiff below was evicted was sued out at the instance of Shaffer. If there was no question of the .terminated tenancy of Creamer in .the case, it might be said that there was abuse.of legal process. Plaintiff below made no claim of right to occupancy except as a guest of his son, who was a subtenant of Creamer. This subtenancy was never recognized by Shaffer, the landlord. The lease in express terms provided that Creamer should not “lease nor underlet or permit any other person or persons to occupy the same (meaning the premises rented) without the consent of said party, of the second part (the landlord), in writing, having been first obtained.” No such consent was shown. Creamer, the tenant at the time defendant in error was evicted, [238] had abandoned the premises and had been away from the land for more than three months. Whatever claim of occupancy Noble F. Austin had he derived from his son, D. R. Austin. Defendant in error disclaimed any rights except those of a visitor. We view the action of defendant below in the samé light as if he or his attorneys had prepared the order for the eviction of Austin and caused the sheriff to serve it. Shaffer was entitled to the exclusive possession of the land as against Creamer, the tenant, D. R. Austin, the subtenant, and defendant in error, the guest of the subtenant. The right of the plaintiff below to occupy the land, or any part of it, could not rise higher- than that of his son. The latter was a mere interloper, an intruder holding adversely to the landlord, in violation of the express terms of the lease. As against D. R. Austin, and all persons holding under him, the owner had the privilege of reentry. This right he exercised through an agent: While there was a technical assault and battery by the under-sheriff on defendant in error, when he took hold of the latter’s arm, yet no actual force was used. Molliter manus imposuit. The plaintiff testified : “Q. He took you by the arm and led you off? A. Yes, sir. Q. That was all he did to you. personally ? A. Yes, sir; he didn’t hurt me any.” The goods removed fi’om the premises were not the property of plaintiff below. For the assault and battery nominal damages only might have been awarded. This, however, would constitute no basis for the imposition of exemplary damages. (Bank v. Grain Co., 60 Kan. 30, 55 Pac. 277. See, also, Mitchell v. Woods, 17 Kan. 26.) Touching the question of the right of the landlord to take possession without legal process, see Bergland, [239] v. Frawley and another, 72 Wis. 559, 40 N. W. 372; Goshen v. The People, 22 Colo. 270, 44 Pac. 503; 2 McAdam on Landlord and Tenant, 3d ed., § 275. Under the authority of State v. Bradbury, 67 Kan. 808, 74 Pac. 231, the assault and battery on defendant in error was not justifiable, yet, as before said, no substantial injury resulted from it. The judgment of the court below is reversed and a new trial granted. All the Justices concurring.