Cox v. Groshong

1 Bur. 150 | Wis. | 1843

Miller, J.

This case was commenced under the act to prevent forcible entries and detainers by George II. Gox, against James Grosliong, Jefferson Groshong, and Stone, before a justice of the peace of Grant county. A. verdict and judgment were rendered against the said defendants before the justice, which they removed to the district court of said county, by certiorari, where the said judgment was reversed; upon which decision of the said district court the said Gox sued out a writ of error.

The examination of the record will require us to con- ■ sider such of the exceptions filed in the district court, to the proceedings before the justice as may be'material.

The first exception filed was to the complaint.

The complaint represents, that u James Groshong, Jefferson Groshong and one Stone, whose Christian name is unknown to the complainant, did, on or about the 1st day of February, 1842, wrongfully, and without lawful authority, enter into and upon the said range of lead ore and the said strip of land, and the right of searching and digging for lead ore thereon, and take possession of the same, against the right of the said complainant, and have from thence hitherto, wrongfully, unlawfully, forcibly, with force and arms, with strong hand and multitude of people, detained the possession thereof from the said complainant, and still do, wrongfully, unlawfully, forcibly and with strong hand and force and arms, and multitude of people, keep out and detain from said complainant, the possession thereof, contrary to the statute and the laws of the said Territory, after demand of possession thereof by complainant,” and prayed that summons might issue for a forcible detainer.

By the act upon which this proceeding was founded, any justice shall have authority to inquire by a jury, as well against those who make unlawful and forcible entry into lands, tenements and other possessions, and with a strong hand detain the same, as against those who, having lawful and peaceable entry into lands, tenements and other possessions, unlawfully detain the same. By this statute, there are two classes of cases made cognizable before the justice: first, an unlawful and forcible entry and detainer ; second, a lawful and peaceable entry and an unlawful detainer. The complaint does not come within either class. It charges that the defendants unlawfully, and without authority, entered the premises, while, if it was desired to proceed for the entry, it should have charged that they unlawfully and forcibly entered. But it was not claimed by complainant to be a summons for an unlawful detainer merely, which comes under the second class where the entry is lawful and peaceful. From this it will appear, that this complaint did not conform to the statute, and for this alone, the district court did right in reversing the proceedings before the justice.

This is a proceeding authorized and regulated by statute, and committed to a tribunal whose jurisdiction and authority are created by the statute alone; for these reasons, the provisions and directions of the statute must be strictly pursued. Justices’ courts are not courts of record, and do not proceed according to the course of the common law, and so far as their powers are concerned, they are confined strictly to the authority given them by the statute. They can take nothing by implication, but must show the power which they exercise to be expressly given them in every instance. Thomas v. Robinson, 3 Wend. 267; Mills v. Martin, 19 Johns. 33; McCarty v. Shannon, 3 id. 429; Borden v. Fitch, 15 id. 140; Andrews v. Montgomery, 19 id. 162.

The complaint sets forth “that the said George IT. Cox was, on the first day of January last, has been, and.still is, the owner of and justly entitled to the possession of a certain range of lead ore, and a strip of land or piece on each side thereof, twenty-five yards wide on each side, running easterly and westerly across the land hereafter described, and the right of searching and digging for lead ore thereon, in section 17, township No. 4 north, of range No. 3 west, in said Grant county.” This would also appear to be too vague and uncertain. It does not describe the land by any marks, descriptions or boundaries, nor does it even refer to its location in the section. It is true that a court would have a superintending power, which would always be promptly exercised, in case a plaintiff should take out a writ of restitution for what he had not recovered; but it is doubtful whether a justice could exercise it. We are aware that it is impossible always to describe a tract of land with so much accuracy as to enable the sheriff to deliver it, without some person to show him, on the ground, the boundaries alluded to in the writ; but nevertheless, the premises must be described with reasonable certainty. See on this subject, Burdick v. Norris, 2 Watts, 28; Martin v. Martin, 17 Serg. & R. 431; Borough of Harrisburgh v. Crongle, 3 W. & S. 460; Smith v. Jenks, 10 Serg. & R. 153; Fisher v. Lorick, 7 id. 99.

The remaining exceptions will be disposed of together. The justice is allowed to adjourn, at his discretion, any trial under the act, not exceeding six days. This is a very summary proceeding, which requires the parties to make every effort to procure their testimony and be prepared for the trial. By the act of 1840, section 8, authorizing the removal of causes from one justice to another, after the oath is made by the defendant, the justice shall immediately transmit all the papers in the case to the nearest justice qualified by law to try a cause between the parties in the suit, who shall proceed to hear and determine said cause in such manner as if it originated before him. In this case the parties made no objection to Justice Spencer. The papers were immediately transmitted to him by Justice Tompkins, and the parties, without objecting to his jurisdiction, went to trial on the same day of the removal of the cause. After this, it was too late to make the objection that he was not the nearest justice to Justice Tompkins qualified to act, if it could be made at any time;

The trial before Justice Spencer did not waive the errors in the complaint; as we have seen that the jurisdiction of a justice must be made affirmatively to appear, and there are no presumptions in its favor. It was com petent to the defendant to raise the objections to it at any stage of the proceedings.

As the complaint is defective, and for this reason the judgment of the justice was correctly reversed by the district court, it is unnecessary to examine the questions raised upon the evidence.

Judgment affirmed, with costs.