Keim v. Daugherty

Tompkins, J., delivered the opinion of the Court.

William H. H. Daugherty sued out a writ of forcible entry and detainer, against Daniel Keim, to appear before a justice of the peace for Preston township, in the said county of Platte. The parties appeared, and the ease was submitted to a jury, who, being unable to agree in their verdict, were discharged by the justice. Afterwards, on the motion of Daugherty, the plaintiff1, the cause was removed to Platte city, in another township, to wit, Carroll township.

Keim objected to this removal, but was overruled, and the cause removed. The trial took place at Platte city, both parties appearing; and Keim moved to dismiss the case, because the justice (as he said) had no right to remove the ca.use; his motion was overruled, the trial took place, and a verdict was found and judgment rendered for Daugherty. From this judgment Keim appealed.

Afterwards, on the second day of the July term of the Circuit Court of Platte county, Daugherty filed a transcript of the proceedings before the justice of the peace in that court, and moved to affirm the judgment of the justice.

The Circuit Court affirmed the judgment of the justice. Keim then filed his affidavit, stating that some months before ‘he had applied to the justice, before whom the case was tried, for the papers in the case, that he might take them to the Circuit Court, and that he was informed by the justice that it was his (the justice’s) duty to file them, and that he would attend to it, and that he, Keim, on the faith of this promise of the justice, had trusted to him to file the transcript.

There was no bill of exceptions taken to preserve either this or another motion to set aside the affirmance of the judgment of the justice by the Circuit Court. But the 27th section of the act of 1839, p. 48, makes it the duty of the appellant himself to file the transcript of the justice’s proceedings on or before the return day of the appeal, and if he fail to do so, it gives to. the appellee the right to produce the transcript, and to the' court the power to affirm the judgment, unless appellant filed a transcript before motion to affirm is made, or the appellant showed good cause for his default. The cause of his default, even if it had been shown in a bill of exceptions, is not good.

Two other reasons for a reversal of the judgment of the Circuit Court have been urged —

*500 1. That a justice for Preston township cannot try a cause of forcible entry and detainer in Carroll township.

2. The 27th section, above-oited, gives to the Circuit Court the power to affirm only, and that court has ordered a writ of restitution and execution.

To begin first with the second reason for reversing the judgment, the 41st section of the act of 1839, p. 49., declares, that “the Supreme and Circuit Court respectively shall have power to issue writs of restitution or re-restitution, or executions with clauses to that effect, as occasion may require, to enforce their judgments in any case arising under this act, or the act to which this is an amendment. By the 34th section of the same act it is provided, that when the appeal is dismissed, a certificate of such dismissal shall be made and certified to the justice} who shall therefore issue execution without delay. This is the only case in which the Circuit Court is authorized to send the case back to the justice, and upon the principle that, expressio unius esi exclusio alterius, it may be inferred, that in every other case the Circuit Court must retain the cause, and carry its judgment into effect.

The action of forcible entry and detainer, or of forcible detainer, may he tried before any justice of the peace of the county in which such act is committed. (See the act concerning forcible entry and detainer, in Digest of 1835, p.278, sec. 5.) And the act to establish justices’ courts, &c., declares, that every justice of the peace shall have jurisdiction co-extensive with the county for which he shall he elected or appointed; (Digest of 1835, p. 348, art. 1, sec. 6;) so that it appears the Circuit Court committed no error, either in refusing to set aside the judgment of the justice, because the cause was tried in Carroll township, or because it issued a writ of restitution and execution.

The judgment is, then, affirmed.