Latimer v. Woodward, 2 Doug. 368

Latimer v. Woodward

2 Doug. 368 | Mich. | 1846

Ransom, C. J.

delivered the opinion of the Court.

It is contended that the judgment below ought to be reversed, because,

1. The justices erred in refusing to- set aside the second panel of jurors. The statute provides that justices of the peace, to whom complaint may be made of any unlawful and forcible entry or detainer, shall issue a warrant for the apprehension of the person complained of, and shall also issue a precept, to the same officer, commanding him to cause to come before them twelve discreet men, &c.., *371at the same time and place appointed for the trial or hearing of the said complaint; and if a sufficient number of persons summoned do not attend, said justices may-order the officer to complete the number by returning others forthwith. R. S. 1838, p. 491, § 3. The statute no where authorizes the justices to dispense with one jury and direct a second to be summoned in their stead. If a sufficient number of the persons summoned do not attend, the deficiency is supplied by immediately returning others ; but those who may attend are not to be discharged; nor is it necessary to issue a new venire ; the officer returns the additional jurors upon the precept first issued.

The record here shows that most of the persons first summoned did attend, and they should have constituted the jury to try the cause, unless set aside by the challenges, or discharged by consent of both parties. On the adjournment of the cause, the justices should have directed the jurors in attendance, to have again attended on the day to which the trial was adjourned, and it would have been as much their duty to have done so, as it was to appear in obedience to the venire.

2. Again, it is contended by the counsel for the plaintiffs in error, that the verdict of the jury was against the evidence adduced on the trial. The complaint charged a forcible entry, as well as detainer; and this, it is contended, is not sustained by proof of a forcible detainer, only.

Upon this point, too, the counsel for plaintiffs in error is clearly right. The evidence on both sides, all tends to show, beyond controversy, that the entry was entirely peaceful, without any force or violence whatever. The detention alone was forcible.

The statute makes it our duty, in reviewing these proceedings, upon certiorari, to review the facts, as well as the matters of law. R. S 1838 p. 493, § 12; Chamberlin v. Brown, ante. p. 120, note.

*372Upon both the grounds, (the error of the justices in directing a second jury to be summoned, and the erroneous finding of the jury upon the evidence before them,) the judgment below must be reversed.

The justices having awarded to Woodward restitution of the premises, it is furthered ordered that the same be restored to the plaintiffs in error, and a writ is awarded for that purpose.

Judgment below reversed and restitution awarded.