Riley v. Catron

4 Indian Terr. 376 | Ct. App. Ind. Terr. | 1902

Gill, C. J.

Appellant as his first assignment of error, says: “ (1) The court erred in not giving peremptory instructions for the plaintiff as requested.” The court certainly committed no error in .refusing to give the jury a peremptory instruction for plaintiff, as the evidence upon the trial in this case nowhere warrants such an instruction, as will be seen from the following testimony of the plaintiff, who testified in his own behalf as follows: “Cross-examination by Mr. McClure (attorney for defendants): Q. Mr. Riley, hadn't'you and Mr. Catron been living together in the same house out there for more than a month before this suit was brought? .A. Which suit? Q. This one here? A. We lived there some before the suit was brought. Q. From the 4th of January to the 11th of February, about; got along all right together, didn’t you? A. Why, he attended to his business, and I attended to mine. Q, During that time did Mr. Catron use any words to you that would have a tendency to excite fear and apprehension of danger at the time you and he lived in the house there? A. No, sir. Q. Did Mr. Catron ever threaten to put you out of doors? A. No, sir, he never threatened to.” The testimony at the trial of this case was conflicting as to various material points, and the jury had the right to determine for themselves what weight they would give to the evidence of each of the witnesses; and where such evidence is conflicting, as in this case, a request for a peremptory instruction for plaintiff is properly refused, and where the jury find by their verdict, from all the evidence, under proper instructions of- the court, that one of the defendants is entitled to possession of the premises in controversy, such verdict will not, as a general thing, be disturbed by this court; and consequently the only question for us to consider is whether the court properly instructed the jury as to the law applicable in this case.

Appellant’s second specification of error is as follows: “ (2) The court erred in refusing to instruct the jury as requested by the plaintiff, as follows: You are instructed that if you believe from the evidence that the defendants entered the premises without the consent of the plaintiff, who was in the possession of the premises, and afterward the defendants hel(| possession of the premises with force and strong hand, you .will find for the plaintiff.” The court refused to give the above instruction requested by plaintiff, and gave in lieu thereof the following: “* * * . it ¿oes not give the defendant any right to enter by force, but if he went into possession as owner, peaceably, he has a right to remain in possession. If he went in by force, the judgment should be for the plaintiff. In other words, in this action it is an action of forcible entry and detainer, and where the party enters by force the judgment must be for the plaintiff, because it is in lieu— It settles no title whatever, but it is an action designed to keep the peace; that it does not try questions of title between the parties, but it is for the purpose of saying to people, ’You shall not use force to gain possession of property;’ and, if there was force used to gain possession of the property by the defendant, the judgment should be for the plaintiff, or those acting with him. If he used no force, but got into possession as owner peaceably, then the verdict should be for the defendant.” It is well settled.that a court is not bound to use the exact words requested by a litigant in an instruction, even though it correctly states the law, so long as the law is substantially stated in another instruction, however clothed in other words. We think the court committed no error in refusing to give the instruction requested by plaintiff, inasmuch as the same principles were embodied in another instruction.

Appellant, as his third specification of error, says: “(3) The court erred in giving the following instructions, which were objected to by plaintiff at the time: ‘If he used no force, but got possession as owner, peaceably, then the verdict should be for the defendant. The action of forcible entry is a tort, pure and simple. Force is the gist of the action, and it must be actual and hostile.’” In Hall vs Trucks, 38 Ark. 257, the court held that “force is the gist of the action for a forcible entry and detainer; but implied force, as when the defendant entered peaceably, though unlawfully, is not sufficient. It must be actual and hostile.” And it has been substantially held by the supreme court of Arkansas, in Johnson vs West, 41 Ark. 535, that implied force, as when the defendant enters peaceably, though unlawfully, is not sufficient, but that the original entry or subsequent holding of possession must be shown to have been with force and strong hand.

We think the above-cited cases correctly state the law and, as the court’s instructions seem to have been based upon them, no error was committed; and, believing that substantial justice was done in this case, the decision of the lower court in refusing to grant appellant a new trial is affirmed.