Harvey v. Clark

Terral, J., delivered the opinion of the court. Frederick Clark and others, as landlords, under '§§ 2547-2557, code of 1892, instituted a special proceeding against Harvey, as their tenant, for holding over after the expiration of his term and without their permission. The plaintiffs below had a judgment by default, in the justice’s court, and Harvey appealed to the circuit court. In the circuit court Harvey offered to make an affidavit denying the facts upon which the summons was issued, as required under § 2552, which offer the court refused, because not made on or before the return day of the summons before the justice of the peace, and gave final judgment against Harvey to remove him from the premises. We think Harvey should have been permitted to traverse in the circuit court the grounds of the charge against him and to have made his defense. In cases of alleged holding over like this the right of appeal is secured by § 2557 in such manner as it exists in cases of unlawful entry and detainer, and §81, code of 1892, provides that an unlawful entry and detainer case upon appeal shall be tried anew on its merits. It is a sound and approved rule of construction that when the law gives a right to any one it impliedly grants all the incidental rights or means by which such right is made effective. The grant óf a new trial upon the merits of the case necessarily includes the incidental right of making up an issue for trial. In the precise case before us the statute secures to the tenant an appeal from the judgment of the justice of the peace and expressly declares that such appeal shall be tried anew upon its merits, and yet how vain and nugatory would be the appeal and the right of a trial thereon upon the merits of the case if the tenant should be denied, in the circuit court, the privilege of traversing the landlord’s complaint, so as to form an issue for trial; for it is a saying of the ancient sages of jurisprudence that the law never does a vain or useless thing. When, therefore, it gives an appeal with a new trial upon the merits, [169] it necessarily gives, by implication, to the tenant the necessary and included right of making up the issue for trial. But it is said that this is a special proceeding, unknown to the common law, and should be strictly construed. Certainly so, but that does not affect the power and duty of the court to see that a proper issue is made up for trial. In all cases the circuit court has large discretion to mould the proceedings before it so as to effeot justice between the parties, and this discretion in special proceedings is coextensive with the exercise of like powers and duties in other cases. We think it was error that the circuit court denied the tenant the right of making in the circuit court, for the first time, a denial on oath of the landlord’s complaint, and, for this cause, the judgment is reversed and the case remanded. Reversed and remanded.