117 Ky. 116 | Ky. Ct. App. | 1903
Affirming.
Upon complaint made by tbe appellees to tbe judge of tbe Lee county court that the appellant had forcibly entered upon a. tract of land in that county of which they were in the peaceable possession, that officer issued a writ of forcible entry in the usual form against appellant, directed to the sheriff of the county who, after service of the writ, returned it to the county judge. The inquisition under the writ was held by the county judge, without the intervention of a jury, and the appellant found guilty of the forcible entry complained of; judgment was thereupon entered in accordance with the finding, awarding appellees restitution of the land in dispute; and, the appellant having failed to file a traverse of the inquisition on or before the third day after the finding of the inquest, the county judge duly issued a warrant of restitution in appellee’s favor. The appellant thereupon filed in the Lee county court his petition for a new trial in the proceeding of forcible entry, and at the same time obtained of the county judge a temporary injunction restraining the sheriff from executing the writ of restitution. Upon the hearing, before the county judge, of the application for a new trial, it was adjudged that appellant was not entitled to a new trial, and his petition therefor, as well as the injunction to prevent the execution of the writ of restitution, was dismissed. From that judgment the appellant took an appeal to the circuit court, in which court a demurrer to the petition was sustained and the petition dismissed, and from that judgment an appeal has been prosecuted to this court.
The question presented for our consideration by the appeal has never to our knowledge been decided by this court. It is this: Can a new trial be granted in a case like the one at bar? Section 714, Civil Code, provides that “a new trial
It is manifest that the granting of a new trial in this character of proceedings was never contemplated by the framers of the Code, for it is further provided, by section 461, that, “if the party against whom the inquisition is found fail to file a traverse of the inquisition with the judge or justice who presided on. or before the third day after the finding of the inquest, the judge or justice shall, on request, issue his execution for the costs; and, if the inquisition be in favor of
Though, as stated, the question under consideration has never been decided by this court, it seems to have been before the superior court as far back as the year 1885, in the case of Scaggs v. Fife, 6 Ky. Law Rep., 659, wherein it was held that, “after judgment has been entered according to the inquisition in a forcible entry and detainer, the judge or justice who presides has no power to disturb it; the only new trial provided for is by a traverse in the circuit court, which must be taken in three days.”
It is insisted for the appellant that the writ of forcible entry has not been served upon him in person, because he was, at the time of its service, absent from the county, and, further, that the inquest took place in his absence. It appears, however, from the return of the writ, that notice thereof, and of the time and place of the trial, was given to and served'upon appellant’s wife, as he was ab
It is averred in the petition for a new trial that the appellant was properly in the possession of the land in controversy as a tenant of J. A. Wallace, who had been given possession thereof under a writ of habere facias possessionem from the Estill circuit court, issued in the action of Crawford’s Adm’r v. Elizabeth Hatton, etc., and that Bruce Smith, one of the appellees, had been deprived of the possession of the land in favor of Wallace by the same writ. Bruce Smith was at the time the tenant of his co-appellee, Mitchell Smith, who then and now claims to own the land. It is not, however, alleged in the petit-.ou that the Smiths were parties or privies to the suit in Es-till county, or that they acquired possession of the land during the pendency of that action, or with knowledge thereof. It would seem, therefore that they could not have been legally deprived of possession by the writ from the Estill circuit court. But whether they could or not, that question, as well as all other matters relied on in resistance of the writ of forcibly entry in the petition for a new trial, could have been determined only in the inquisition before the county judge, or upon a traverse and
If there is merit in the claim of Wallace to the possession of the land in controversy, it may be suggested that the proceedings of forcible entry will not bar an action in ejectment to recover the land.
Wherefore the judgment of the lower court in sustaining the demurrer to the petition for a new trial, and in dismissing the petition, is hereby affirmed.