4 Indian Terr. 86 | Ct. App. Ind. Terr. | 1901
Practically the only complaint of error made in the court below in the trial of the case is that the court erred in instructing the jury to allow the plaintiff in the court below to recover any rents or damages due for the detention of the property, for the reason that the record fails to disclose that any writ of possession had ever issued in favor of the plaintiff in said action, or that the plaintiff had ever given a bond to the marshal for the value of the property specified in said writ of possession under section 3352, Mansf. Dig. (section 2286, Ind. T. Ann. St. 1899). An examination of the statute discloses the fact that the plaintiff can recover only for rents and damages of the defendant for an illegal detention of property in an action of forcible entry and detainer when the defendant gives a bond and retains possession of the lands and premises mentioned in the writ. See sections 3352, 3362, 3368, Mansf. Dig. (sections 2286, 2296, 2302, Ind. T. Ann. St. 1899). It is-, however, contended by the appellee that during the progress of the trial in this case all the parties and the court treated-the case as though a writ of possession had issued in the first instance, and the defendant had given a bond to retain possession of the property; and the appellant, by his action and his words, and by failing to make objection to the introduction of