Powers v. Sutherland

62 Ky. 151 | Ky. Ct. App. | 1864

CHIEF JUSTICE DUVALL

delivered the opimion op-the court:

The appellee having been found guilty of a forcible detain-er, traversed the inquisition, and on the trial of the traverse, the circuit eourt, at the instance of the appellee, quashed the warrant, and refused to permit the appellants to file an “amended petition and warrant” offered by them. The appellants seek, by this appeal, to reverse that judgment.

First. The warrant was fatally defective in several particulars. It charges, in substance, that the defendant “ did, in the year 1859 and 1860, forcibly detain one house and field on the waters of the little South Fork in the .county .aforesaid, which were in the peaceable possession of Barbara Bullock, late Barbara Richards, deceased.” The first and most obvious objection to the sufficiency of this statement is, that it discloses no interest on the part of the plaintiffs in the bouse and field mentioned, nor any right whatever to the possession. It shows no connection or relationship between the plaintiffs and Mrs. Richards or her husband. For all that the warrant, shows to the contrary, the plaintiffs are strangers, as well to* the title as to the tenant who is alleged to have been in tho peaceable possession of the premises.

But, in the second place, a forcible detainer is defined to be “ the refusal of a tenant to surrender to his landlord the land or tenements demised, after the expiration of his term; or, of a tenant at will, after the determination of the will of the landlord.” (Civil Code, sec. 500.). To maintain a proceeding for a “forcible detainer,” it is, therefore, obviously essential that the relation of landlord and tenant should- be alleged, or in some, fortp appear on the face of the warrant.

On the trial of a traverse, it is expressly provided that nothing contained in the statute regulating the proceeding shall be construed to prevent the court “ from deciding any matter of law properly brought before'them asín other cases.” (Code, sec. 573.) The court, therefore, had the power to quash the warrant at any stage of the trial; and from what has been said, it is clear that the power was properly exercised in this-case.

Second. Nor did the court err in refusing to allow the filing of the “ amended petition and warrant,” as it is styled. Without deciding whether a warrant in forcible entry and detainer is amendable at all — especially after a traverse to the circuit court — we deem it sufficient to say, that the amendment offered was not only defective in failing to show that the relation of landlord and tenant existed between the parties, but it presented an entirely new case by introducing a number of new parties plaintiff. This cannot be allowed. In the case of Burbage vs. Squires (3 Met. Ky. Rep., 79), it was held that,, although, upon an appeal, the case is to be tried anew, as if no previous judgment had been rendered* yet it must be the-same identical case which was tried by the court of original jurisdiction, not a new and different case.' “ The same action may be tried anew, but no new action is to be tried.” Of course the same rule must be applied to the traverse of an inquest in forcible entry and detainer, which is, in form and effect, an appeal, differing from other appeals only in this, that it merely calls in question the finding of the jury, and not the judgment of the court thereon.

It is admitted that this class of proceedings should always be reviewed with great liberality. Errors which are merely formal or technical should be disregarded. But there is a point beyond which the toleration of irregularities and errors cannot be extended, and we are satisfied that that point was reached in the present case.

The judgment is therefore affirmed.