Atkinson v. Lester

2 Ill. 407

• Court: Illinois Supreme Court
• Decided: December 15, 1837
• Status: Published

Opinion

Smith, Justice,

delivered the opinion of the Court:

This was an action of forcible entry and detainer, prosecuted before two justices of the peace, and removed by appeal to the Circuit Court of Cook county, and by appeal from that Court to this. The following points are made and relied on as grounds of error by the appellant:

1. That the affidavit and notice do not contain a sufficient description of the premises.

2. That the Circuit Court in refusing to instruct the jury, “ That a mere trespass without other act of force and violence, is not such force and violence as will constitute a forcible entry and detainer; and that to constitute a forcible entry, the party must enter with strong hand or force and violence;” and also, in instructing the jury, “ That, if they should believe, from the evidence, that the defendant entered wrongfully and without lawful right, and then kept the plaintiffs out from regaining possession, it is sufficient to sustain this action; and it is not necessary to prove actual force and physical violence to sustain this action.”

The description in the affidavit and notice is, “ of the premises enclosed by us, situate in the county of Cook, and State of Illinois, being the same on which you now reside, containing about one hundred acres of land, more or less, and commonly called North Grove.” This description, although general, is sufficiently certain for the purposes of this action.

In considering the second point, it may be remarked, that the instructions asked are mere abstract propositions of law, and do not in any way refer to the evidence in the cause, though they may be referrible to a case of forcible entry and detainer, and might have been, as mere abstract questions, refused to be given by the Court; but they were properly refused, and the instructions given were correct.

The act of the legislature of this State in regard to forcible entry and detainer, is peculiar in its phraseology, and evidently provides a remedy for three classes of cases under the law.

The first section declares, that “ If any person shall make entry into lands, tenements, or other possessions, except where entry is given by law, or shall make any such entry by force; or if any person shall wilfully, and without force, hold over any lands, tenements, or other possessions, after the determination of the time for which such lands, tenements, or possessions were let to him, or to the person under whom he claims, after demand made in writing for possession thereof, by the person entitled to such possession, such person shall be adjudged guilty of a forcible entry and detainer, or of a forcible detainer, as the case may be, within the intent and meaning of this aet.”

(1)

From this section it will be perceived that there is, First, a wrongful or illegal entry, as contradistinguished from a forcible or violent one ; Secondly, a forcible one by means of actual violence; and, Thirdly, that of a wrongful holding over of a tenant.

This case may then be arranged to the first class contemplated by the statute ; and the instructions of the Court were directly applicable to it, and properly given.

The judgment is affirmed with costs.

Judgment affirmed.

R. L. 313; Gale’s Stat. 313.