Ward v. Lewis

1 Stew. 26

• Court: Supreme Court of Alabama
• Decided: January 15, 1827
• Status: Published

Opinion

JUDGE CRENSHAW

delivered the opinion of the Court.

This was a case of forcible entry and detainer originally tried before a justice of the peace, in the county of Mobile. The jury found the defendant Ward guilty, and the justice awarded judgement of restitution. Ward obtained a certiorari, and the judgement was affirmed by the Circuit Court, and he now prosecutes a writ of error to this Court.

Many assignments of error have been made. Such as are deemed worthy of consideration will be noticed under a few heads :

First, second, third, fourth, fifth, and sixth, That it does not appear by the record that Lewis, the plaintiff, was in possession ;that he proved force, or what was proved by the several witnesses; that the complaint does not set forth any estate in the premises known to the law; that it is repugnant, in alleging that he was possessed and dispossessed of premises which he claimed by virtue of a fee simple title.

Tiie complaint states that Lewis, at the time of the injury, was possessed of the premises, a lot in the city of Mobile, (describing its locality and boundaries,) which he claimed by virtue of a fee simple; and that Ward, with force and strong hand, unlawfully entered and expelled him from the peaceable possession thereof.

It must be recollected that this is an injury to the possession or right of possession, and that by the 20th section of the act concerning forcible entries and detainers, there is an express prohibition to make any inquiry into the estate or merits of the title. It was even technically correct, to allege in the complaint that the party was possessed and dispossessed,not withstanding the estate claimed was a fee simple, and it was not necessary as has been insisted, to allege that Lewis was seized of the premises. It was contended in the argument, that as Courts of limited jurisdiction should shew by their record every legal requisite to the exercise of their authority, it was essential in this case that the record should exhibit the whole of the evidence given or offered on the trial, whether ob-jectedto or not.

By the 16th section of the statute referred to

a the justice is required to enter on his minutes or docket, among other things, the names of the witnesses, the admission of evidence objected to, the rejection of evidence offered, and all the proceedings had before him touching the complaint. It seems clear that no more of the evidence is required to be recorded than such as was objected to, and thereupon admitted or rejected. The statute having specified what part should be recorded, it follows that it does not require more to be recorded. By the words “ all the proceedings had before him touching the complaint,” we are to understand, not the evidence, but such other material proceedings as had not been enumerated.

Seventh, eighth, ninth and tenth assignments. The summons venire and other process were not directed to the sheriff. It does not appear that the jurors were sworn. The verdict was signed-by a person as foreman, who does not appear to have been summoned as a juror. It does not appear that the complaint was read to the jury.

It seems that the summons and other process were directed to a constable. By a statute subsequent to that of 1805, b it is made unlawful for a sheriff to serve civil process issued by a justice of the peace. Civil process is that which calls upon a person to answer for a civil injury. Criminal process issues to compel him to answer for a crime or misdemeanor, where punishment of some kind or other must be the consequence of conviction. Perhaps at common law a party might be indicted for forcible entry and detainer, and on conviction be punished by fine and imprisonment. But the case at bar was a proceeding for a civil injury, to recover possession of the premises, not to punish the defendant. This then was civil process, and properly directed to the constable.

The record does shew that the jury were sworn, and if it did not, to sustain tbe judgement, it should be presumed that they were, unless the contrary appeared. “ The verdict is signed, “Bloodgood, foreman.” The naffle of John Bloodgood appears in'the venire. The !uaB^straíe has recorded, that John Bloodgood, with the rest of the venire, was sworn on the jury. The law does not require that the verdict should be signed by the foreman or any of the jury, but if it did, the omission of the Christian name may be readily supplied by reference to the magistrate’s record.

Ache, for plaintiff in error,

cited 1 Cowp. 30 — 2 Cain 375 — 5 John. 437 — 11 John. 442 — 4 Com. Dig. 354 — 8 John. 44< — Childress v. M‘Gee, Minor’s Ala. Rep. 131 — 6 Term R.375 — 3 Cain259 — 2Cain 96,97 — 1 Coke 118 a— 3 Bl. Com. 35 — 4 Burrow 22, 44 — 1 Burrow 377 — 1 Ld Raym. 610 — 3 John. 340 — 2 Hawk. P C. 41, s. 39— Laws Ala. 370 — Constitution Ala. 926, s. 10.

Hitchcock and Hale, for defendant in error. Note. See acts of 1825, p. 6, by which sheriff's are authorized to serve process ia cases of forcible entry arid detainer.

It is to be presumed that the complaint was read to the jury, unless the record shews to the contrary.

I must confess that I have not met with a more complete and perfect record in any case of forcible entry and detainer, nor one wherein the law has been, more strictly complied with than this.

Eleventh assignment. Justices of the peace have no jurisdiction of complaints of forcible entry and detainer.

With this assignment I have considerable difficulty. By the ÍOth section of the 5th article of the constitution, the jurisdiction of a justice of the peace in civil cases, shall be limited to causes in which the amount in controversy shall not exceed fifty dollars. My opinion is, that in ordinary cases where the amount in controversy will necessarily be ascertained by the judgement, it shall not exceed fifty dollars, but in civil cases in which from their nature there can be no amount of money in controversy, the magistrate may have jurisdiction, and at least if such jurisdiction is not within the provision of this section of the constitution, it is not repugnant to it. In a case of forcible entry and detainer, the value of the premises cannot be inquired into, and has no relation to the proceeding. This statute then is not against the provisions of the constitution. Judgement affirmed.

The Chief Justice not sitting. ■

Laws Ala. 373.

Acts of 1823 is22»1-»