33 Ill. 452 | Ill. | 1864
delivered the opinion of the Court:
This was a proceeding to collect rent in arrear by a distress warrant. The warrant was issued by defendant in error against plaintiff in error, and it was returned into the Mason Circuit Court. Under the provisions of the act of 1841 the court below proceeded to ascertain the amount due, which was found to be the sum of four hundred dollars. Upon this finding the court rendered a judgment for the amount and for costs, and made a special order that the sheriff sell the property distrained, or so much as might be required to satisfy the judgment. The cause is brought to this court for the purpose of reversing that judgment.
The first error assigned questions the correctness of the decision of the court below in overruling the motion to dismiss the proceeding. The ground of the motion to dismiss was that the distress warrant was insufficient because it required the bailiff to collect all of the rent for the use of only a part of the land embraced in the lease. The court overruled the motion, and exceptions were taken and preserved in the record by plaintiff in error. It will be observed, that the motion to dismiss only points out, as a defect in the warrant, that it requires the bailiff to collect all of the rent for only a part of the land leased. On" this motion there was no evidence from which the court could determine what land had been leased, or upon what lands rent had accrued. Even if it had been necessary to describe the leased premises in the warrant, a defective description could not be taken advantage of by a motion at this stage of the proceeding. But according to the most approved precedents no description of the premises is necessary. It was surplusage to insert a description of the demised premises in the warrant, and whether correct or not could make no difference.
It is again urged that the court erred in refusing to continue the cause because there was- not filed a copy of the instrument sued upon, ten days before the term. In the case of Sketoe v. Ellis, 14 Ill. 75, it was said that it was not the intention of the legislature further to interfere with the common law right of the landlord to distrain for rent in arrear, than to require him, before he can sell the property distrained, to bring the tenant into court, establish his right to make the distress and have the amount assessed. That the court in its action has only to inquire whether the relation of landlord and tenant exists between the parties, and if so, to ascertain the amount of rent due when the distress was made. These were held to be the only questions that could properly arise on the trial, and no other transactions between the parties can be taken into consideration. That neither party can introduce a demand against the other not arising alone out of the relation of landlord and tenant.
It will be observed, from what was there said, that this proceeding is not governed by the practice affecting ordinary trials at law. The statute has only brought the landlord’s right to sell the property distrained under the control of the court, but has not made the proceeding an original action. It originates, as it did before, from the action of the landlord, and under his authority is the levy made, and not under a process of the court. But after it progresses to that stage, it is transferred to the court for the single purpose of ascertaining whether the relation of landlord and tenant exists, and what sum was due for rent when the goods were seized. The act has not required that a copy of the lease or any other instrument shall be filed with the warrant, or before the trial. The act does not provide that the cause shall progress and be tried as in other causes originating in the Circuit Court, when the warrant is returned there; nor does it require it to be tried on pleadings. Every case tried in the Circuit Court is not necessarily governed in all respects by the practice act, as appeals are tried in a summary manner without pleadings, and are not, in all respects, governed by the practice act, and for the reason that the statute does not require it. So of this proceeding, neither pleadings nor conformity to the practice act are required. A copy of the lease was not required to be filed in this case. Nor was a declaration necessary to a trial.
It is, again, insisted that the evidence fails to show that plaintiff in error was let into possession of the demised premises. It does show that he was in possession and cultivating a portion of the lands described in the lease. It also appears that the part which he and his sisters occupied was the only improved portion of the land. From this evidence, the jury were justified in finding that plaintiff in error had been admitted to all the possession of which the property was capable. If he failed to obtain possession of any portion of the premises, he could, no doubt, have shown that fact, and have rebutted the presumption that, having entered under the lease, he had acquired possession of the whole of the premises. No objection is perceived to the finding of the jury on this ground.
From the views already presented, it will be perceived that the first and second instructions aslced by plaintiff in error were properly refused. By accepting the lease and becoming a tenant, plaintiff in error admitted the title of his landlord, and thereby precluded himself from disputing it. The conclusion then follows, that the third instruction was properly refused.
It is, lastly, insisted that the court below erred in rendering a judgment on the finding of the jury. The statute has not authorized the court to render judgment, but simply to enter the finding of the jury on the record, and certify the amount found to be due, with the costs, to the officer or other person making the distress, which becomes his authority to make sale of the goods distrained. In this case a recovery is had and a regular judgment is rendered, awarding an order on the sheriff to sell the property. In so far as a special execution was awarded, or the order for the sale of the property was awarded, the judgment is erroneous, and must be reversed.
It is urged that the finding of the jury is insufficient to authorize this court to enter the proper order. It finds a specific sum due; but it is found as damages, instead of calling it rent due. If a defect, this can only be as to the form, and not as to the substance. We see, from the evidence hi the case, that the only claim was for rent in arrear, and the merely calling the sum found to be due, damages, cannot vitiate the verdict. We are, therefore, of the opinion that it is substantially sufficient, and may well sustain a proper order in such a case. It is, therefore, ordered by this court, that the finding of the jury be entered upon the records of this court; and it is further ordered, that the clerk of this court certify the amount found to be due, to the sheriff of Mason county, so that he may, under the statute, proceed to sell the property distrained, or so much thereof as may be necessary to pay the sum found to be due, and the costs of the Circuit Court.
Judgment reversed.
