3 Wyo. 669 | Wyo. | 1892
August 16, 1890, John K. Jeffrey, the defendant in error, brought an action under the style and designation ■of “forcible detainer” before W. F. Lee, one •of the justices of the peace for Laramie county. Summons was issued against the defendants therein, Helen Jenkins, and John Jenkins, who was joined as husband .of the said Helen, and the claim of the plaintiff was stated in the summons “that the defendants unlawfully detain from the possession of the plaintiff lot number 3, in block number 357, in the city of Cheyenne. ” The notice to vacate premises, given by plaintiff to the said Heleu, was filed. August 20, 1890, the summons was returned, and the parties appeared before said justice of the peace. The plaintiff, Jeffrey, filed his complaint, which is in the following language: “The plaintiff in this action complains of the defendants herein, and alleges that said defendant Helen Jenkins is the wife of the defendant John Jenkins, who is joined with her for the purposes of this action. For a cause of action the plaintiff alleges that he is the owner of the following described real estate, to-wit: All of lot number three, (3,) in block number three hundred and fifty-seven, (357,) in the city of Cheyenne, in the county of Laramie and state of Wyoming. That the possession of said premises is, and for along time has been, unlawfully and wrongfully.withheld from this plaintiff by said Helen Jenkins; and that more than three days before the commencement of this suit this plaintiff caused to be served npon said defendant Helen Jenkins a written notice to surrender the possession of the said premises, but that said Helen Jenkins failed and refused, and still fails and refuses, to surrender possession thereof to this plaintiff. Wherefore said plaintiff demands judgment against said defendantsforthe possession of said premises, and the costs of this action. ” The defendants answered, (probably orally, as no written answer is here,) denying “that the plaintiff is the owner of the property described in the complaint, or that he is entitled to the possession thereof, and alleges that the defendant Helen Jenkins is the owner of said property, and now has, and for a long time past has had, the rightful possession thereof, and demands judgment from the plaintiff for costs.” The defendants then asked “that the case shall be certified and returned to the district court of the county. ” After taking the matter under advisement until the following day, the said justice of the peace, upon the appearance of the parties, “ruled that this case be certified to the district court.” The plaintiff, Jeffrey, took an exception to this ruling. The cause was so certified, and a transcript of the record and all the original papers in the case were transmitted by said justice of the peace to the district court of Laramie county. The parties appeared in said district court October 9, 1890, and, the plaintiff, Jeffrey, having filed a motion to“re-raaud the cause back to the justice of the peace before whom it ' was originally brought,” the court, after hearing the argument of the counsel, overruled said motion, and the plaintiff, Jeffrey, excepted. The cause was then set for trial for October 11th. October 10th the defendants moved to dismiss the cause on the following grounds: (1) The court has no jurisdiction to try the samé; (2) this is an action for forcible entry and detainer, and
There can be no question that the justice of the peace had no right to try the cause. The complaint before him, and which we have embodied in full in this opinion, was insufficient in the action of forcible de-tainer, under the provisions of the Justices’ Code. Sections 3578, 3579, of the Revised Statutes provide that, before the justice shall proceed, the plaintiff shall file a complaint, in which he shall describe the property, the possession of which is claimed, and the facts upon which he relies in order to recover the premises, which must be sustained by proof, or the action must be dismissed; and this complaint must be filed whether the defendant appears or not. The defendant is required to admit or deny these facts in his answer. In this complaint there is a bare allegation of ownership, and that the defendants unlawfully and wrongfully withheld the possession. There is no allegation of the facts upon which plaintiff relied to recover possession of the premises, and there was no issue formed upon which the justice of the peace could lawfully hear, try, and determine the controversy. Heshould have dismissed the cause summarily, unless the complaint had been amended so as to show the facts required in the statute, and under the pleadings, which disclosed an action in the nature of ejectment, he had no right to certify it to the district court. The only issue presented was that of title and the unlawful possession of the defendants, and this he could not try, as the allegations were those required in an action of ejectment. The action of forcible entry and detainer or of forcible detainer is no bar to an action of ejectment, (Rev. St. Wyo. § 3589,) but it cannot be a substitute for the action of ejectment, or, as it is termed under the Code of Civil Procedure, an action for the recovery of real property. The action of forcible entry and detainer or of forcible detainer is a summary method of determining the x-ight or fact of possession. Where a defendant forcibly and unlawfully makes entry into lands and tenements, and detains the same, or when he unlawfully or by force holds the same,, when his entry has been peaceable, the action, under the statute, will lie. It also lies, under the statute, against tenants holding over their terms, or after failure to pay rent for three days after due; in sales of realty on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree by virtue of which such sale was made; in sales by executors, administrators, and guardians; and on partition, where any of the parties to the petition were in possession at the commencement of the suit, after such sales so made on execution or otherwise shall have been examined by the proper court, and adjudged legal by it; and in cases where the defendant is a settler or occupier of lands and tenements without color of title, and to which complainant has the right of possession. ‘Sections 3574, 3575, Rev. St. Wyo. In none of these enumerated cases in section 3575 can the title be disputed or called in question, as, in the first instance, the tenant could not deny the title of his landlord, and in the others, referring to judicial sales, the solemn judgment or decree of a
The position taken in this court in the ■argument of the cause by the learned •counsel for plaintiffs in error, that the district court had no jurisdiction at all, «either original or appellate, would be impregnable, and at first appearance seems so, as jurisdiction of the subject-matter of a cause can never be conferred by consent. But it was not attempted to be conferred by consent; it already existed in the district court, and had only to be invoked by the parties, either by service of process, in the ordinary v> ay, or by voluntary appearance, and plea to the merits. There can be no doubt that the trial court had jurisdiction of the persons of the defendants, as the cause was taken or removed there at their own motion; and they afterwards appeared there by counsel, to resist the motion of the plaintiff, Jeffrey, to remand the cause to the justice of the peace for trial. True, they after-wards moved to dismiss for want of jurisdiction, but after going voluntarily into court, and appearing in the action, it was too late to do this. No matter in what manner, by what means, or under what name, the action came into the trial court, it was a cause involving title and right to possession growing out of title alone, and of such actions the district court had jurisdiction to hear, try, and determine, and jurisdiction of the persons of the defendants was acquired by their voluntai'y appearance.
The findings of the trial court were findings in a suit for the recovery of the realty, and the judgment rendered upon them is in effect, if not in form, a judgment in ejectment. The position we assume in this “comedy of errors” is by no means a novel one. At an early day the following case arose in Illinois, and came before the supreme court of that state: A claim was presented for allowance to a county court, a body similar in powers and functions, it appears, to a board of county commissioners, or a board of supervisors, and which was, as stated in the opinion, a successor to the county commissioners’ court. The claim was disallowed by this county court, and an appeal was taken to the circuit court of the county, but the statute gave no right of appeal from said county court in such matters to the circuit court. This latter court had original jurisdiction of an action to recover the amount due on the claim from the county, and the supreme court say : “The circuit court, then, had oi'iginal jurisdiction of the subject-matter, and the pai’ties, by voluntai’ily appearing and consenting to a trial between them upon that subject-matter, waived all objection to jurisdiction of the parties. The suit stood, so far