Allen v. Houn

• Decision Date: 02 April 1923
• Docket Number: No 1046,1046
• Citation: 213 P. 757,29 Wyo. 413
• Parties: ALLEN v. HOUN
• Court: Wyoming Supreme Court

213 P. 757

29 Wyo. 413

ALLEN v. HOUN

No 1046

Supreme Court of Wyoming

April 2, 1923

APPEAL from the District Court, Fremont County; HON. C. O. BROWN Judge.

Action by R. E. Allen against Jacob Houn to recover possession of real property. There was judgment for plaintiff and defendant appeals.

Affirmed.

A. C Allen, for appellant.

The District Court was without jurisdiction to render judgment. Plaintiff's remedy, if any, was by action under Section 5349 C. S. 1910 for forcible entry and detainer over which the District Court would have only appellate jurisdiction. Exclusive original jurisdiction is vested in courts of justices of the peace. (Sec. 3549 C. S. 1910, Art. V, Section 10.) District Courts have jurisdiction in error in cases of this class. (Sec. 5134 C. S. 1910.) If an affirmative statute, which is introductive of a new law, directs a thing to be done in a certain manner that thing shall not, even though there are no negative words, be done in any other manner. There is nothing in the code of Wyoming to expressly grant to the District Courts the right to hear and determine cases of forcible entry and detainer, except as an appellate court or on the ground provided under Section 5135 C. S. 1910 permitting common law practice in certain cases where no civil procedure has been provided. The essentials of jurisdiction are: First, that the court have cognizance of the class of cases to which the one to be adjudged belongs second, the proper parties must be present; and third, the point decided must be in substance and effect within the issue. (Munday v. Vale, 34 N.J.L. 418.) Courts of general jurisdiction may have special powers conferred by special statute but such powers do not belong to it as a court of general jurisdiction. And in the exercise of such powers a court of general jurisdiction will be regarded as a court of limited and special jurisdiction. (Watts v. Dull, 184 Ill. 91; Galpin v. Page, 18 Wall. 350; Morse v. Presby, 25 N.H. 384; Fergeson v. Jones, 17 Ore. 204; Peacock v. Bell, 1 Saund. 69.) In attachment proceedings the court of general jurisdiction acts under special statutory power only. (Cariker v. Anderson, 27 Ill. 358; Rowley v. Berrian, 12 Ill. 198; Varin v. Edmonson, 5 Gill. (Ill.) 274; Laurence v. Yatemen, 2 Scan. (Ill.) 15.) And the statute must be strictly followed. (Gaudy v. Hall, 30 Ill. 109; Miller v. Hendy, 40 Ill. 448; Campbell v. McCahan, 41 Ill. 45; Clarke v. Thompson, 47 Ill. 26.) The rule applies to ejectment. (Hulls v. Buntin, 47 Ill. 396; Denning v. Corwin, 11 Wend. 648; Thatcher v. Powell, 6 Wheat. 119. See also Latham v. Edgerton, 9th Cow. 227; Rogers v. Dill, 6 Hill, 415; Bloom v. Burdick, 1 Hill, 130; Mills v. Martin, 19 Johns. 7; Jackson v. Esty, 7 Wend. 148; Dakin v. Hudson, 6 Cow. 221; Borden v. Fitch, 15 Johns. 121; Bigelow v. Stearns, 19 Johns. 39.)

Justices of the peace have exclusive jurisdiction in forcible entry and detainer. (Jenkins v. Jefferis, 29 P. 189.) The action of forcible entry and detainer cannot be substituted for ejectment. (Ginn v. Rogers, 9 Ill. 135; Fitzgerald v. Quinn, 165 Ill. 360.) The procedure provided by statute must be followed. (Steiner v. Priddy, 28 Ill. 179; Schaumtoeffel v. Belm, 77 Ill. 567; French v. Willer, 126 Ill. 611; Burns v. Nash, 23 Ill.App. 552.) Jurisdiction follows the mode prescribed by statute. (Cooper v. Sunderland, 3 Iowa 114; Cohan v. Barrett, 5 Cal. 196; Renwich v. Morris, 7 Hill (N. Y.) 575; McDonald v. Stiles, 54 P. 487.) The question of jurisdiction may be raised at any time. (7 R. C. L. 1043.)

Bryant S. Cromer, for respondent.

Without conceding that justices of the peace have exclusive original jurisdiction in forcible entry and detainer the law on the subject having been settled in Jenkins v. Jeffrey, 5 Wyo. 670, we submit that the point is not material to the present case, which, in addition to seeking restitution, includes a demand for damages for withholding possession, in the sum of $ 1386, a restraining order against interference on the part of defendant and for general relief. Damages and injunctive relief are beyond the jurisdiction of a justice's court. The jurisdiction in forcible entry and detainer is limited to restitution of the premises in suit, (Sec. 6228 C. S. 1920), and in proper cases for rent due and payable (Sec. 6222 C. S. 1920), the action lies against tenants holding over their terms, or for failure to pay rent. This action is brought under Section 6236 C. S. 1920 to recover realty. The action of ejectment lies for the recovery by a landlord of the possession of real property where the landlord is entitled to possession. (24 Cyc. 1399; Chauvenet v. Person, 217, 464; 11 L. R. A. (N. S.) 417; Hill v. Pinque, 178 P. 952.) The action is brought to recover possession and for damages in two counts. The judgment should be affirmed.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Plaintiff R. E. Allen, appellee here, brought this action against defendant Jacob Houn, appellant here, in the District Court of Fremont County, alleging among other things "that the plaintiff is now and at all times mentioned was the owner of and had a legal estate in and to certain real property in Fremont County, Wyoming, more fully described as" the east one-half of north-west quarter of Lot 2, Section 30; and the northeast quarter of the southeast quarter of Section 30, Twp. 1 N. R. 4, "and that the plaintiff is entitled to the possession of the said above described premises, together with the possession of all of the houses, barns, corrals, and other improvements thereon, and that defendant unlawfully keeps the plaintiff out of possession of said premises." Plaintiff further alleges that he, as lessor, entered into a five year's lease for said premises with defendant as lessee, on February 25th, 1918, said lease containing certain covenants and conditions, which are set out, including the agreement that, should the lessee fail, neglect or refuse to keep or perform the covenants and conditions of the lease, it should be lawful for the lessor to immediately declare the contract forfeited and cancelled and to enter upon and take charge of the premises. It is further stated that said lessee failed and refused to comply with certain of the covenants and conditions of said lease, including failure to farm said premises in good workmanlike manner, failure to properly stack the hay, refusal to permit lessor to use part of the pasture, and refusal to occupy that part of the buildings designated and provided for in the lease; that said lessor accordingly has terminated said lease and that he gave written notice thereof to defendant. Plaintiff asks for restitution of the premises, together with damage and, generally, other equitable relief. The lower court found for the plaintiff, and entered judgment accordingly. From this judgment the defendant appeals.

1. The only error assigned is that the District Court had no jurisdiction, based on the contention that the action herein is one of forcible entry and detainer, of which only justices of the peace have original jurisdiction, and that an action between a landlord and tenant to recover possession of the premises leased cannot be brought as an original action in the District Court. Section 6236 of the Wyoming Compiled Statutes 1920 provides for the requirements of a petition in cases commonly called or known as ejectment, of which the District Court has original jurisdiction, as follows:

"In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same * * * and that the defendant unlawfully keeps him out of the possession; and it shall not be necessary to state how the plaintiff's estate or ownership is derived."

Sections 6621 to 6635 of the statutes of 1920 provide for summary actions in forcible entry and detainer before justices of the peace. Section 6625 provides that in such a case plaintiff shall in his petition describe the property the possession of which is claimed and shall state the facts upon which he relies in order to recover the premises. Without deciding the point, it may be assumed that the plaintiff here might well have brought this action under the provisions of these sections. But we think it clear that he did not, but meant to and did bring an action in ejectment. This we think appears clearly from the fact that he brought his action directly in the District Court, and that his petition, of which we have quoted portions verbatim, comes within the requirements of Section 6236, supra, relating to such actions. As to whether or not, in cases like the present, the allegations provided for in the last mentioned section of the statute are the only essential allegations, or whether other facts, and what facts, should be pleaded in addition, we need not determine; the petition here, in addition to pleading the allegations necessary under Sec. 6236, supra, also sets out the facts of the case generally, and in the absence of any question raised in regard thereto, we should treat it sufficient to confer jurisdiction on the District Court, provided that such action, upon the facts, could properly be brought in that court, a question which we shall now proceed to consider.

2. The ordinary common law remedy by which a landlord may recover possession is the action of ejectment and this is in fact the only civil remedy to which he can resort when the statute does not authorize a summary proceeding for the recovery of possession. (Taylor L. & T. (9th Ed.) Sec. 698.) The authorities are not entirely agreed as to whether a right of re-entry exists, and hence an action in ejectment lies, in the...