88 P. 548 | Kan. | 1907
The opinion of the court was delivered by
This was an action of unlawful and forcible entry and detainer. F. A. Campbell leased a hotel' or residence building, a refectory and pagodas in Vinewood Park from E. W. Wilson for the park season of 1904, beginning about April 15 and ending about November 15, with the option of continuing the contract for the season of 1905 if the conduct of the business should prove satisfactory to Wilson. Under the lease Campbell furnished and equipped the hotel and other buildings and conducted the business during
The doors were locked when Shick left the buildings on that day, and when he returned he found that the doors had been unlocked, the carpets taken up and the furniture and fixtures removed, some of which had been already loaded upon a car and a part of which was' lying outside upon the ground. Afterward there was a strife between the parties to gain and regain possession, including some injunction proceedings. Campbell did regain a scrambling possession of one building, but subsequently lost it to Wilson, and thereupon the present proceeding was brought. He filed a complaint in the court of Topeka, alleging that the defendant “unlawfully entered” the premises and “unlawfully and forcibly detains said premises.” After the appearance of the parties, and after the plaintiff had produced his evidence in that court, he was permitted to amend the complaint by alleging an unlawful and forcible entry. The extent of the amendment was to add the words “and forcible” to the allegation of an “unlawful” entry. The trial resulted in a judgment for the defendant, and the plaintiif appealed to the district court, where he was successful.
It is first contended that the district court was not
“The proceeding, however, is a summary one for the speedy adjustment of controversies about possession, and, as it is cognizable before justices of the peace not familiar with pleading, it would indicate that it was never intended that the,strict and technical rules of pleading should be applied to complaints in these actions.” (Page 666.) ' '
It is next argued that as the lease had expired Wilson, the owner, was entitled to occupy his property, and that having gained possession he was entitled to retain the same even by force. .If the owner entitled to possession can legally obtain it he may undoubtedly hold the same, but he has no right to resort to unlawful and forcible means to gain possession. The remedy of forcible entry and detainer is provided so that possession of real property may be obtained in a judicial and orderly way and without resorting to violence or steps likely to provoke a breach of the peace. Having this remedy, no one is .permitted to vindicate his claimed rights with his own hand. (Campbell v. Coonradt, 22 Kan. 704.)
It is said that Wilson’s men in gaining an entrance and dispossessing Campbell did not exercise such force as is necessary to render this remedy available. While
“But even where an entry is made in the absence of the party entitled to the possession, and afterward he appears, and the party making the entry keeps him out of possession by force — this is sufficient to authorize the party entitled to possession to maintain the action of forcible entry and, detainer against the wrong-doer.” (Page 285.)
It has been held that every unlawful entry upon the possession of another is in the eye of the law a forcible entry, and that where possession surreptitiously obtained is maintained by force the entry will be considered forcible. (Burt v. State, 2 Tread. [S. C.] 489.) Without giving unqualified approval to that rule, it is enough for the present case that the unlawful entry was accompanied by some force; that it was maintained by force, and was of such a character that under our authorities Campbell was entitled to avail himself of the remedy of forcible entry and detainer. (Campbell v. Coonradt, 22 Kan. 704; Coonradt v. Campbell, 25 Kan. 227; Burdette v. Corgan, 27 Kan. 275. See, also, Cathcart v. Walter, 14 Mo. 17; Febes v. Tierman, 1 Mont. 179.)
The court rightly told the jury that not even an •
“One-great object of the forcible entry act is to prevent even rightful owners from taking the law into their own hands and attempting to recover, by violence, what the remedial process of a court would give them in a peaceful mode.” (Mitchell v. Davis, 23 Cal. 381, 384.)
The law of the case was fairly presented in the instructions given by the court, and no grounds are found for reversal.
The judgment is affirmed.