Burns v. Nash

23 Ill. App. 552, 1887 Ill. App. LEXIS 51

• Court: Appellate Court of Illinois
• Decided: July 15, 1887
• Status: Published

Opinion

McAllister, P. J.

It is indisputable that the proceeding in which the judgment in this case was rendered, is purely a special statutory proceeding in derogation of the common law. Schaumtœffel v. Belm, 77 Ill. 567.

Formerly, original jurisdiction of cases within the provisions of the statute of forcible entry and detainer was vested exclusively in Justices’ courts, but, by statute, such jurisdiction has been conferred upon any court of record, concurrently with the Justices’ courts. 1 Starr & C. Stat., p. 1180, Sec. 5. That change, of course, gives jurisdiction to the Superior and Circuit Courts, and they are courts of general and superior jurisdiction. The court below is one of that class. But, in taking cognizance of cases under the statute of forcible entry and detainer, such courts exercise a "special, statutory and extraordinary power, and stand upon the same ground and are governed by the same rules as courts of limited and inferior jurisdiction, as to which the rule is, that nothing shall be intended to be within the jurisdiction but that which so expressly appears on the face of their proceedings.

In Thatcher v. Powell, 6 Wheat. 119, Chief Justice Marshall, speaking of the effect of a transcript of record made in a court of general jurisdiction, while in the exercise of special statutory powers said:

“ In summary proceedings, where a court exercises an extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed; and those facts, especially, which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice.” Haywood v. Collins, 60 Ill. 328, and authorities there cited.

In the case at bar, the record fails to show facts whichs under the Forcible Entry and Detainer Act, would give the court jurisdiction. There is nothing to show a forcible entry; nor to show, with any degree of certainty, that the defendants entered the premises under any lease, or with the assent and acquiescence of the plaintiff below; or to show in any way, that the relation of landlord and tenant existed. Beel v. Pierce, 11 Ill. 92, and Steiner v. Priddy, 28 Ill. 179, are directly -in point against the jurisdiction. Besides, there was another jxxrisdiet'onal defect; the premises were not described with reasonable certainty in either the complaint or judgment. The description was: “ The lot on which the building known as Ho. 77 West Adams Street was situated in Hovember, 1882.” The very lease filed with the papers provides for the removal of that building on or before May 1, 1884; and there is nothing to show whether that was done or not. It is therefore uncertain whether the building so known in 1882, was there in July, 1885, and capable of being readily identified, or not. The' description must be of such certainty as that the premises can be readily iden tified or the court gets no jurisdiction. Schaumtœffel v. Belm, supra; Haskins v. Haskins, 67 III. 446.

We are now confronted with the question whether or not the plaintiffs in error are precluded, by reason of the warrant of attorney contained in the lease and the cognovit, from assigning for error such want of jurisdiction. That they are not, we think, necessarily follows from the following reasons:

First, the term in said lease had expired more than a year before the proceedings by confession, and there is nothing to show that defendants below ever entered into possession of the premises under that lease or ever held them under the same or any renewal thereof. Such being the case, the confession was not authorized by the warrant of attorney contained in said lease.

Secondly, to hold the confession valid in such case, where no facts appear showing a case within any of the provisions.of the forcible entry and detainer statute, would be to hold that jurisdiction of the subject-matter might be conferred by the consent of the parties, which is wholly inadmissible; because the court must derive its jurisdiction from the Jaw, and not from the consent of the parties. Beach v. Nixon, 9 N. Y. 33; McCloud v. Jaggers, 3 Phila. 304.

But waiving those matters, is it competent for a party seeking his remedy under said statute to depart from the course of proceeding prescribed by it, and obtain a judgment by another and different mode, in no respect authorized or recognized by that statute ?

The statute confers new rights and prescribes a remedy by a conrse of proceeding unknown to the common law. It confers a special power over a subject and prescribes a specific mode for its exercise. We regard the law as well settled, that in such case the mode prescribed, especially as respects jurisdiction, must be strictly pursued, whether the tribunal upon which the power is conferred be of superior or inferior jurisdiction. Haywood v. Collins, supra; Cooper v. Sunderland, 3 Iowa, 114; Cohen v. Barrett, 5 Cal. 196; Stafford v. Ingersoll, 3 Hill (N. Y.), 38; Renwick v. Morris, 7 Hill (N. Y.), 575.

“ It is, as a maxim, generally true, that if an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner.” Potter’s Dwarris on Stat., p. 73.

The asserted propriety of the judgment by confession upon a warrant of attorney contained in a lease can receive no support from the statute of this State relative to judgments by confession. It reads : “Any person, for a debt bona fide due, may confess judgment by himself or attorney duly authorized, either in term time or vacation, without process.” That statute limits the right to cases of a debt. Cases for the recovery of the possession of real estate under the Forcible Entry and Detainer Act, are based not upon a debt, but a tort. The gist of the action is either a forcible entry or wrongful detention. The plea is not guilty.

The practice of entering judgment by confession upon warrant of attorney, without process, in all actions of tort, did not obtain, and there is no precedent for it at common law, so far as we have been able to ascertain. If allowable in other cases, it is impliedly prohibited by the particular mode of proceeding prescribed by the Forcible Entry and Detainer Act, in which there is discernible a certain public policy, based upon humane considerations of the wrong, oppression and hardships which might ensue, if families, in any kind of weather, at any time of day or night, might be thus forcibly ejected from their homes with all their effects, without notice or warning.

The law-making power has never given its sanction to, but public policy is against it, and courts should be very wary about sanctioning such an innovation. The judgment below should be reversed.

Judgment reversed.