Farncomb v. Stern

• Decision Date: 06 March 1893
• Citation: 18 Colo. 279,32 P. 612
• Parties: FARNCOMB et al. v. STERN.
• Court: Colorado Supreme Court

32 P. 612

18 Colo. 279

FARNCOMB et al. v. STERN.

Supreme Court of Colorado

March 6, 1893

Error to Arapahoe county court.

Action by Samuel A. Stern against Mary S. Farncomb and another for forcible entry and unlawful detainer and for damages. There was judgment for plaintiff, and defendants bring error. Affirmed.

Syllabus by the Court

1. The question of the sufficiency of the evidence to support the finding and judgment of the court will not be reviewed upon error or appeal unless it appears that objection or exception was taken in apt time in the trial court.

2. In an action of forcible entry and detainer, where the entry complained of was forcible and illegal, the plaintiff need not make a demand for the possession of the premises before commencing his action.

3. The owner of the fee, as well as a stranger to the title, may be guilty of an unlawful and forcible entry upon premises demised to his own tenant.

4. Objections on the ground that several causes of action have been improperly united, as well as on the ground of misjoinder of parties, must be taken by demurrer or otherwise in the trial court, or they are to be deemed waived. This rule is as applicable to actions for forcible entry and detainer as to other civil actions.

M. B. Carpenter and W. N. McBird, for plaintiffs in error.

C. P Butter, for defendant in error.

ELLIOTT J.

1. The review of this cause cannot extend beyond the record proper. The trial below was to the court without a jury, by consent of parties. The record brought to this court shows no objection or exception of any kind during the trial. No objection or exception was taken to the finding or judgment as rendered, nor was any motion made for a new trial. At no stage of the proceeding in the trial court was the sufficiency of the evidence to support the finding questioned in any manner. Under such circumstances it is well settled that this court will not review the judgment upon the evidence. Hoppie v. Best, 4 Colo. 555; Law v. Brinker, 6 Colo. 555; Breen v. Richardson Id. 605; Brown v. Landon, 11 Colo. 162, 17 P. 515. It is a salutary rule which requires a party to try his cause thoroughly at nisi prius before seeking a review in an appellate court of any supposed errors not in the record proper. A party neglecting to present in apt time to the trial court objections to its rulings or decisions at the trial will not, as a rule, be heard in the appellate court to complain of such rulings or decisions. To permit him to be so heard would be manifestly unfair to the opposite party. Besides, it would have the effect of transferring the real trial of almost every litigated cause from the nisi prius court to the appellate tribunal. See City of Durango v. Luttrell, 17 Colo. ----, 31 P. 853, and cases there cited. Upon this subject an eminent author observes: 'Unless objections are seasonably made upon specific grounds, and exceptions properly taken in the trial courts, the rulings of such courts, in actions at law, cannot be reviewed in the appellate tribunals. If this were not the rule, the spectacle would be presented of causes tried upon one theory in the court of nisi prius, and decided upon a different theory in the court of appeal. The rule is therefore general, in actions at law, that no objection to a ruling made on the progress of the trial is available upon error or appeal unless it was first made and ruled upon in the court below.' 1 Thomp. Trials,§ 690.

2. The assignments of error in respect to the record proper require brief consideration. It is objected that no demand for the possession of the premises is alleged. The complaint alleges a lawful possession and actual occupancy of the premises by plaintiff, and that, while he was in such possession and occupancy, defendants, by force, entered and dispossessed him, and are now occupying and holding the premises by force. Counsel for plaintiffs in error cites Doss v. Craig, 1 Colo 178, wherein it is said that in an action for unlawful detainer under section 5, c. 35, Rev. St., the plaintiff must aver and prove a demand in writing for possession of the premises which he seeks to recover. The Doss Case was an action by a landlord against his tenant for holding over after the expiration of the term, and the court said that the demand required in such an action 'is analogous to the demand required in replevin.' The comparison is pertinent. The general rule in replevin is that, where possession of the goods has been illegally obtained by the defendant, the plaintiff need not make a demand for the return thereof before commencing his action. So, in an action of this kind, no demand is necessary where the entry complained of was forcible and illegal. There is a distinction in this respect between an action for a forcible and illegal entry and an action for unlawful detainer after a peaceable and lawful entry. Miller v. Sparks, 4 Colo. 303; Grice v. Ferguson, 1 Stew. (Ala.) 36; Crane v. Dod, 2 N. J. Law, 320; ...