17 Ind. 459 (Ind. 1861), , O'Connell v. Gillespie

Citation:17 Ind. 459
Opinion Judge:Worden, J.
Party Name:O'Connell v. Gillespie
Attorney:Crane and Mason, for the appellant. Williamson and Daggy, for the appellee.
Judge Panel:Per Curiam.
Case Date:December 12, 1861
Court:Supreme Court of Indiana

Page 459

17 Ind. 459 (Ind. 1861)

O'Connell

v.

Gillespie

Supreme Court of Indiana

December 12, 1861

APPEAL from the Putnam Circuit Court.

The judgment is reversed, with costs. Cause remanded.

Crane and Mason, for the appellant.

Williamson and Daggy, for the appellee.

OPINION

Worden, J.

This was an action by Gillespie against O'Connell, for the forcible entry and detainer of a certain town lot, brought before the mayor of the town of Greencastle, and appealed to the Circuit Court. Trial; verdict and judgment for the plaintiff.

The defendant asked a charge to the substantial effect that in order to entitle the plaintiff to recover, it was necessary that the defendant's entry should have been unlawful and forcible, or, having peaceably entered, that he should have forcibly detained the premises. This charge was refused, and the Court charged that the plaintiff must prove "that the defendant either unlawfully or forcibly took possession, and detained the possession from the plaintiff either peaceably or forcibly; or, if the defendant is in possession, having peaceably obtained the possession, that he both unlawfully and forcibly keeps the possession against the plaintiff, he having the right to the possession."

The statute on the subject is as follows: "Any person who shall make unlawful or forcible entry into lands, and shall either peaceably or forcibly detain the same, against any person having right to possession thereof, or any person having peaceably obtained the possession of lands, who shall unlawfully and forcibly keep the same, against any person having the right to possession thereof, may be ousted from such premises," &c. (2 R. S. 1852, § 12, p. 492.) If the first branch of this provision is to be construed literally, no error was committed in refusing the charge asked, or in giving the one given. With such construction, the action is maintainable although there be no force either in the entry or detainer. The provision might be read, leaving out

Page 460

the alteratives, as follows: "Any person who shall make unlawful .... entry into lands, and shall .... peaceably .... detain the same, against any person having right to possession thereof .... may be ousted," &c.

But this literal interpretation fails to meet the evident intention of the Legislature, as gathered from the entire provision, as well as from...

To continue reading

FREE SIGN UP