Richardson v. Callihan

73 Miss. 4 | Miss. | 1895

Woods, J.,

delivered the opinion of the court.

The second count in the second amended declaration is prolix and involved, but it contains sufficient matter of substance to uphold it as an action of trespass for appellee’s illegal ejection from premises to which he had title under a valid lease. The judgment in the former proceedings for possession of the premises, in unlawful entry and detainer, constituted no bar to the prosecution of the present action. The evidence shows that the appellant was the real promoter of and party to the unlawful entry and detainer case. Under § 4475, code of 1892, it is clear that the appellee was not precluded from prosecuting the present action by reason of the former judgment, and that former j udgment was not conclusive of the facts in this present suit. A reference to this provision of our code, as it appears in Huchinson’s code, the code of 1857, and code of 1871, will clear up any doubt as to the meaning of § 447 5 of the code of 1892. In those codes, the language is that “no judgment rendered as aforesaid (judgments in forcible entry and detainer), either for plaintiff or defendant, shall bar any action of trespass, or any writ of ejectment,or writ of right, between the same parties respecting the same tenement; nor shall any verdict found as aforesaid be held conclusive of the facts therein found in any such action of trespass, ejectment or writ of right. ’ ’

The action of unlawful entry and detainer is a purely possessory one, and its sole office is to try possessory rights, while trespass and ejectment are actions involving inquiry as to title. The appellee might have sued in ejectment for the unexpired term, but he chose to waive that, and sue in trespass for his damages resulting from his eviction from premises to which his title was undoubted.

There was no error in admitting evidence of the rental value of the land, to aid the jury in estimating the damages of the plaintiff below.

Affirmed.