Harrell v. Holt

Hall, Justice.

Forcible entry is the violently taking possession of lands and tenements with menaces, force and arms, and without authority of lav/ (Code, §4524); and forcible detainer is the violently keeping possession of the same, in the same manner, and by the employment of the same means (Id., §4525), and these offpnses are punishable, on conviction upon indictment. Id., §4526. A more summary and additional remedy is given the party thus forcibly evicted or kept out of possession, by a warrant issued and tried before justices of the peace and a jury summoned and empanelled for the purpose (Id., §4085), and where resort is had to this proceeding, as ivas done in this case, the only facts that can be inquired into by the jury, upon the trial, are the possession by the plaintiff in the warrant and the force used by the defendants. Id., §4087. The jury found for the defendants, and thus negatived the idea that the plaintiff’s tenant was violently removed from the premises, and kept out of the same by menaces, force and arms, and without authority of law, or that the plaintiff was lawfully in possession thereof. On this finding, the plaintiff petitioned for a certiorari, which the judge refused to sanction. We cannot say that he erred in thus refusing to order the writ- It is evident from the statements in the petition that the principal defendant had but recently been in thé possession of the land and tenements in question, and that in her absence they had been entered on surreptitiously and secretly, without her knowledge and against her consent, by the agent and would-be tenant of the plaintiff, they breaking open the door of the house, which had been securely fastened, and removing therefrom the corn found in the building. It is true that, in a few days thereafter, the defendant, Mary Holt, came to the place, with her furniture and other household goods, and demanded restoration of possession. Neither she nor those accompanying her and assisting to remove her goods to the premises, made use of any violence or uttered any threats or menaces, and her entry thereon was not accompanied by force or the display of arms. The whole business seems to have been conducted in a remarkably quiet and orderly way, and no serious resistance appears to have been made to her entry; indeed, there was scarcely a remonstrance against her so doing. The verdict of the jury was sustained by the evidence, and in refusing to disturb it, the court exercised only a sound discretion, with which we cannot interfere.

Judgment affirmed.