Drum v. Holton

Dunn, C. J.

Error is prosecuted in this case to reverse the decision of the district court of Milwaukee county, sustaining the demurrer of defendant to plaintiff’s declaration, and entering judgment in favor of defendant.

The plaintiff in this action declared in case against the defendant Holton, setting out his cause of action in three counts: The first reciting substantially a certain proceeding in an action of forcible entry and detainer, theretofore had in favor of plaintiff against one Cornelius Butler, before Clinton Walworth, Esq., a justice of the peace, wherein the plaintiff recovered judgment of restitution of the N. W. i of section fifteen, in Town 8, in Range 21, in the county of Milwaukee, against said Butler, on which judgment a writ of restitution issued ill favor of plaintiff against Butler, directed to the sheriff or any constable of said county, commanding, among other things, “that, taking with him the force of the county if necessary, he cause the said Butler to be immediately removed from the aforesaid premises, and the said Hugh Drum to have peaceable restitution of the same, and thereof with the said writ make due return within thirty days that said writ was delivered to the defendant, who then was and continued until the return day of said writ sheriff of said county; and that he, the defendant, so being sheriff, afterward, on the return day of said writ, falsely and deceitfully returned upon the writ to the court of the said justice, “that he had removed the said Cornelius Butler from the premises mentioned, and had given the said Hugh Drum possession of the same,” *459 whereby the said plaintiff is injured, etc. The second count recites the same proceedings, and avers “that said defendant, as such sheriff, falsely and deceitfully returned on the said writ that he, as such sheriff, had removed the said Butler from the premises mentioned in said writ, and had given the said Hugh Brum peaceable restitution of the same,” whereby said plaintiff hath been injured, etc. The third count contains a recitation of the same proceedings, and delivery of the writ to defendant, as sheriff, and avers “that Thomas Pentheny, Patrick Pentheny and John Butler, at the time of the delivery of the writ to the defendant, as sheriff, and from thence until the return “day of the writ, were upon the said premises, occupying houses thereon situate and being, and holding the same and the possession of the said premises without the consent and against the will of plaintiff;. and the said defendant, at any time during that period, might have removed the said Thomas, Patrick and John from the same, by virtue of said writ, if he would so have done, whereof the said defendant so being sheriff, had due notice, yet the said defendant, as such sheriff,’ intending' to injure plaintiff, did not, nor would, at any time before the said return of the said writ (although often requested so to do), remove, or cause to be removed, the said Thomas, Patrick and John, or either of them, or cause peaceable restitution of the said premises, as he was commanded, but wholly failed and made default therein; and the said Thomas, Patrick and John did not remove, nor did either of them remove from said premises, but continued to hold the same without the consent and against the will of said plaintiff, whereby he hath sustained injury,” etc.

There can be no question but that the two first counts are clearly defective, and do not entitle the plaintiff to recover upon the case presented in either count. The rule of law is imperative, that where you seek to make a sheriff liable for a false return of a writ, you must mer with certainty and particularity wherein the falsity consists, for the reasons: 1. That you are required *460 to apprize the defendant of what he has to defend against. 2. That the jury may correctly understand the true issue between the parties. And 3. That the court may be enabled to pronounce a correct judgment upon the case presented. 1 Chitty’s Plead. 214.

The allegation offalsity in the return is too vague and general; it is not set forth with that certainty and precision which is requisite to apprize the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it, or to inform the court whose duty it is to declare the law arising upon the facts. 1 Chitty’s Plead. 255; 3 Black. Com. 395.

These principles are fully recognized in Pangburn v. Ramsey, 11 Johns. 141 .

The third count is not obnoxious to the objection of want of certainty and precision in setting out the facts which show the falsity of the return as relied on by plaintiff' to entitle him to recover. The question to be examined is, do the facts relied on in the third count, as establishing the falsity of the return, admitting their truth, as the demurrer ‘ does in law, amount to a false return and entitle the plaintiff to recover in this action %

We are of opinion that they do not. In considering this question, we must look to the proceeding in forcible entry and detainer. It partakes of the nature of a criminal proceeding, for upon conviction of the defendant, the justice may impose a fine for the force used, as limited by our statute. The complaint is direct and special (not general) against the defendant or defendants named ; the issue is between the plaintiff who makes complaint and the person or persons complained of; the finding of the jury is and must be according to the issue ; and the judgment of the justice in consonance with the finding of the jury. After judgment a writ of restitution issues, following the proceedings and judgment, commanding the sheriff or other officer, that, taking with him the aid of the county, if necessary, he oust or dispossess the defendant by name (in the case at bar, Cornelius Butler) of the premises *461 described in the complaint, and restore the plaintiff to peaceable possession thereof. We understand from the very nature of this proceeding, that as in its inception, it is based upon a complaint against a particular party named (and the plaintiff in his complaint may include as many as are guilty); as the issue is between the party complained of and the plaintiff, as the finding of the jury is upon that issue, as the judgment of the justice is upon that finding, and as the writ of restitution is upon that judgment, the sheriff is not required by law to travel out of the writ and dispossess any others than those named in the complaint, judgment and writ. Great - stress is laid on that part of the command of the writ which is in these words, following the ouster of defendant: “and cause the said plaintiff to have peaceable restitution of the same,” and it is insisted that the command of the writ is not obeyed until all who may be in possession of any part of the premises, whether privy to defendant’s forcible entry and detainer or not, or whether strangers to the record or parties thereto, are ousted. This appears to the court to assume for plaintiff, by means of his writ and the aid of the sheriff, an over-strained and unreasonable power over the rights of parties who are not complained of, and are in no wise precluded by any judgment of the law in a proceeding to which they were parties, or might by any rule of law have made themselves parties. Certainly the whole command of the writ (and we must take the whole together), only required the sheriff to oust the defendant, Cornelius Butler (and privies), who alone was complained against, and make to the plaintiff peaceable restitution of the premises, so far as he had been dispossessed by that identical defendant and those assisting him. This case cannot be assimilated in this respect to the proceeding on a writ of habere facias possessionem, in ejectment. In forcible entry and detainer, the mere possession at the time of the entry complained of is brought in question. If the plaintiff were in possession, and the defendant forcibly entered, although he may have *462 been the owner in fee, this action will lie; it merely inquires into the plaintiff’s possession and defendant’s forcible entry; and the sole object is to oust the defendant and restore possession to the plaintiff of that of which the defendant alone has forcibly ousted him. In this action, no one but the plaintiff who complains, and the defendant or defendants complained of, can be admitted as parties, by any rule of law. In ejectment, the title is in question ; the plaintiff must recover upon the strength of his own title against the world, and not on the weakness of his adversaries’ title.

Any one having adverse title may come in and defend. The writ commands the sheriff to cause the plaintiff to have peaceable possession of the premises (to which, be it remembered, he has proven title as against every one, any one having adverse title being authorized to come in and defend), and the plaintiff may point out the premises to the sheriff and direct who are to be dispossessed; in such case, the sheriff is not a trespasser if he oust a person improperly, but the plaintiff is. And if under this writ the sheriff oust any one who is rightfully on the premises, he may be restored, according to English law and practice, in a summary way, by motion to the court, being a court of superior jurisdiction. It cannot be insisted, that any such practice, sanctioned by law, could obtain before justices of the peace in our Territory, who have jurisdiction by statute in actions of forcible entry and detainer. If the full extent of power, which a plaintiff and sheriff may exercise under the writ of possession in ejectment, is claimed for the plaintiff and sheriff under the writ of restitution in forcible entry and detainer, then the same prompt relief should be at hand for those who may be affected by an abuse of this power.

If there be no obvious reason why the law and practice under the writ of possession in ejectment should apply to proceedings on a writ of restitution in forcible entry and detainer, but very good reasons against it, the courts should refuse its application. The plaintiff in this case *463 has his remedy, if, as he alleges in his declaration there are other persons occupying houses on the premises, and he can show that they, or either of them, forcibly entered and dispossessed him, the action of forcible entry and detainer is open, and he may bring as many actions as he thinks he can sustain by proof. Courts should not encourage any party to do by indirect means that which may be done by pursuing the plain provisions of law.

We affirm the judgment of the district court with costs.