This was an action of trespass in which the plaintiffs
“Supplemental answer. Said defendants, Belle Tompkins, William H. Oulmer, and Jabez G-. Sutherland, by leave of court first had and obtained, file a supplemental answer, alleging the following facts, which have occurred since the commencement of this action. Said defendants, answering, allege: (1) That this action came on for trial on the first day of December, 1888, against all the original defendants, including John T. Sullivan, mentioned in the original complaint. That it appeared on the trial of the issues made by said pleadings that the said John T. Sullivan acting at the request of the said defendants Belle Tompkins and Harvey K. Tompkins, and relying thereon, and upon the writ of restitution mentioned in the original . answer, removed the plaintiff Anna Marks from the possession of the premises mentioned in the original pleadings, and removed her goods therefrom. That said writ was void, and his defense in said action on said trial depended on the right of said defendant Belle Tompkins, as owner*408 and possessor of said premises, to remove said plaintiff Anna Marks therefrom, and his employment by said defendant Tompkins to effect such removal. That the employment of said Sullivan by the said Belle Tompkins, and her request to him to remove said plaintiff Anna Marks from said premises, and to act for and in privity “with her in effecting such removal, and the possession of said premises by said Belle Tompkins, and her right and title thereto, was submitted on testimony to said jury; and the court thereon instructed said jury, as the only way in which such removal of said plaintiff Anna Marks by said defendant Sullivan could be justified, in substance and to the effect, that if said defendants Tompkins were at the time of the alleged wrong in possession of the Eureka Hotel property, and that property included the ground on which plaintiff built the house in question, and the plaintiff built that house without their consent, and against their protest, they, said defendants Tompkins, had a right by employing John T. Sullivan to remove the plaintiff and her goods to preserve their possession in tact, using no more force than was necessary for that purpose. That on said trial the jury impaneled to try said action found a verdict in favor of the said John T. Sullivan in the following •terms, to wit:
“ ‘ We, the jury, impaneled in the above-entitled ■action, find for the plaintiffs against the defendants William H. Oulmer, Jabez G-. Sutherland, Harvey K. 'Tompkins, and Belle Tompkins, and assess their damages •at $2,500; and no cause of action against John T. Sullivan.
“‘Peter Stubbs,
“ ‘Foreman.’
“And upon said return of said jury, so above set out, “the said court entered a judgment, which was duly given and made in favor of the said John T. Sullivan, and against said plaintiffs that he go hence without day,*409 which judgment is of record in said court in this cause, and remains unappealed from, unreversed, and in full force; and the judgment and the verdict against the other said defendants has since been reversed by the supreme court of said Territory, on appeal. Wherefore said defendants, now answering, say: The plaintiff’s action is barred by said verdict and judgment, and that the same conclusively -establishes that said defendant Belle Tompkins has a possessory title to said premises, and rightfully ejected said Anna Marks therefrom; that said verdict and judgment are a final determination of the issues in the original pleadings in favor of said defendants, and against said plaintiffs, and said defendants therefore ask to be hence dismissed, and that they may have judgment for their costs.
“J. G-. Suth.eRlaND,
“ ARTHUR BROWN,
“Defendants’ Attorneys.”
The court refused the leave asked, and this ruling the defendants assign as error.
In substance, the first allegation of the proposed plea is that it appeared on the trial of the case against Sullivan that he, at the request of Tompkins and his wife, and as their agent, removed the plaintiff Anna Marks and her goods from the premises referred to in the complaint. The allegation is not that Sullivan was the agent, and that the removal was made by him as such agent. If the plea had been allowed, the inquiry as to the agency of Sullivan would have been limited by what appeared on the first trial, and the verdict and the judgment thereon in his favor. The inquiry would not have been as to whether Sullivan acted as the agent of Belle Tompkins and her husband. The question would have been, did the agency appear as found by the verdict of the jury, and affirmed by the judgment of the court? The plaintiffs alleged in their complaint that all the defendants committed 1¡he tres
The appellants also insist that forcible entry was the plaintiffs’ exclusive remedy, under the allegations of their complaint, and that trespass did not lie. At common law a person in the wrongful possession of real estate could not maintain an action of trespass for- a forcible entry against the owner having an immediate right to enter; but the statute of this Territory gives a person -in the wrongful possession of real estate a right to the action of forcible entry against the owner having the right to enter if he enter forcibly. In such a case, however, the statute does not give the right to an action of trespass; but it does not deny the right to such action where it exists at the common law. The person in possession has the right to such an action against all persons making forcible entry, except the owner with the right of immediate entry. This is the doctrine announced in the case of Canavan v. Gray, 64 Cal. 5, 27 Pac. Rep. 788. The plaintiff alleges in her complaint that the defendants trespassed on her property in which she was in the lawful possession. The judgment of the court below is affirmed.