Franklin v. Geho

• Citation: 3 S.E. 168,30 W.Va. 27
• Court: Supreme Court of West Virginia
• Decision Date: 25 June 1887
• Parties: Franklin v. Geho.

3 S.E. 168
30 W.Va. 27

Franklin
v.
Geho.

Supreme Court of Appeals of West Virginia.

June 25, 1887.

1. Demurrer to Evidence—Inference in Favor of Plaintiff.

A motion to exclude all the plaintiff's evidence from the jury is equivalent to a demurrer to the plaintiff's evidence. And the court, in determining the facts proven by the evidence, will draw inferences more favorable to the plaintiff when there is a grave doubt which of two inferences should be deduced, and these inferences will be drawn in favor of the plaintiff to the same extent as they would on like evidence if the defendant moved for a new trial.

2. Forcible Entry—Summary Redress.

A forcible entry, under our statute giving civil redress by summary proceedings, is precisely what would constitute a forcible entry for which at common law a party might be punished criminally. It therefore lies when a party enters on land in the possession of another, and, either by his behavior or speech, gives those who are in possession just cause to fear he will do them some bodily harm, if they do not give way to him. Such just cause of fear which wotdd make the intruder liable to criminal punishment, or to be proceeded against in this manner civilly, arises from his carrying with him such unusual number of attendants, or by arming himself in such manner as plainly to show a design to back his pretensions by force; or, it may arise from his threatening to kill, maim, or beat those who continue in possession, or by making use of expressions plainly implying a purpose of using force against those who make resistance.

S. Same—Evidence.

In a case where a court on motion to exclude evidence, could properly infer that the acts of a party amounted to an unlawful detention of real estate and not a mere trespass, it is not error to refuse to set aside the verdict of the jury finding such unlawful detention.

[3 S.E. 169]

4. Same—Verdict.

In an action of unlawful or forcible entry and detainer, a verdict finding that the defendant unlawfully withholds from the plaintiff the land in the summons described, is sufficient, and a judgment may be properly entered upon it.

6. Same—Appeal—Harmless Error.

When the only ground on which the defendant could ask or expect a verdict in his favor is that he committed an act of trespass only, and never detained the possession of the land from the plaintiff, who, he claimed, remained in possession of the land, this court could not reverse the judgment of the court below in favor of the plaintiff, as, if the defendant has any ground of complaint, it is only that costs were adjudged against him, and the appellate court never reverses a case for error only, in the judgment, as to costs, nor will it entertain the writ of error if this is all the subject of controversy in the appellate court.

6. Trial—Reception of Evidence—Recalling Witness.

The courts are liberal in allowing parties plaintiff or defendant, after their evidence is closed, to recall witnesses and again examine them, to supply omitted facts. If such action of the court is reversible at all, it would only be when the discretion was obviously abused, to the prejudice of the opposite party, and in a manner which would, if allowed, tend to pervert j ustice.

(Syllabus by the Court.)

Writ of error from circuit court, Marshall county.

This was an action for a forcible and unlawful entry and detainer, brought by Donald Franklin against Thomas M. Geho, in the circuit court of Marshall county, to recover the possession of a parcel of land thus described in the summons: "Ninety poles situated in Liberty district, Marshall county, West Virginia, bounded as follows: Beginning at the road where the posts lately set out for fence commence; thence, with the same, N. 28° E. 4½ poles, to a stake; thence S. 75° E. 33 poles, with old line and fence, to a stake; thence N. 83½ W. 28½ poles, to a stake; thence N. 74 W., to the beginning." The summons was issued September 24, 1885, and was duly served. A motion was made to quash the summons on October 12, 1885, but it seems to have been forgotten or withdrawn, as it was never acted on by the court. On November 3, 1885, the defendant pleaded not guilty, and the issue was joined, which was tried by a jury. On November 4, 1885, the jury found this verdict: "We the jury find that the defendant, Thomas M. Geho, unlawfully withholds from the plaintiff, Donald Franklin, the premises in the summons described, namely: Beginning at the road where the posts lately set for fence commence; thence, with same, N. 28° E. 4½ poles to a stake; thence, S. 75° E. 33 poles, with the old line and fence, to a stake; thence N. 83½ W. 28½ poles to a stake; thence N. 74° W. to the beginning, containing ninety poles." The defendant moved the court to set aside this verdict and grant him a new trial, because the verdict was contrary to the law and the evidence, and because the rulings of the court during the trial were erroneous. On November 14, 1885, the court overruled this motion and entered up a judgment that "the plaintiff recover of the defendant the possession of the premises as described in the verdict of the jury aforesaid, and his costs in this behalf expended."

Bills of exceptions were taken during the trial of the case, whereby it appears that the plaintiff alone offered any evidence in the case, and this evidence proved that the plaintiff owned a farm adjoining the defendant's, that an old fence separated the two farms, which fence was within 100 yards of the defendant's residence. That prior to July 20, 1885, there never had been any controversy as to the division line between these two farms, this old fence being on the line, as supposed by the owners of each of these farms. That for about 20 years the plaintiff had owned his farm, and lived upon it, and the 90 poles named in the summons was a part of his farm adjoining the defendant's farm, and was a meadow which he had occupied for 20 years, occasionally cultivating it in corn and wheat, but generally keeping it in grass, which he cut. As usual, he cut the 90 poles of meadow just prior to July

[3 S.E. 170]

20, 1885, and removed a part of the grass cut, leaving a part of it to get dried before it was removed. Being absent from his home on the morning of July 20, 1885, his neighbor, the defendant, having, for some reason, concluded that this old fence was not on the true boundary line between the farms of the plaintiff and the defendant, entered on the plaintiff's farm, in his absence from home for a single day, and commenced putting up a fence along what he claimed to be the true division line between the two farms, which new fence cut off the 90 poles named in the summons from the plaintiff's farm, and would have added that much to the defendant's farm. The plaintiff, when he came home, forbade the defendant to enter on his land, and build this fence, but the defendant said he would build the fence, as the land he was inclosing by it belonged to him as a part of his farm. This 90 poles, so claimed by this defendant, had on it an old frame building, which was unoccupied, but which had been occupied formerly by the plaintiff's father, with his assent, and had on it also an orchard. The plaintiff threatened to have him indicted, but he continued putting up the fence, and hauling away the hay which the plaintiff had cut on this 90 poles of land in dispute, claiming it as his hay. The plaintiff tried to have him indicted, but the grand jury refused to indict the defendant for this act. The plaintiff and his sons then pulled down the part of the rail-fences that the defendant had built to inclose this 90 poles of land which he claimed. He put it up, and they pulled it down again. And on August 28, 1885, the defendant went on the land to rebuild this fence for the third time. The plaintiff forbade him to go on with the building of this fence. They quarreled over it, but the defendant finished the fence as it was built originally by him on July 20, 1885, and he swore he would whip the plaintiff if he pulled it down again. The plaintiff said he would let the court decide the dispute, and he employed counsel promptly, to bring this suit, but it was not brought for one month afterwards. In the mean time, this 90 poles in dispute being in meadow, neither party exercised any acts of ownership on it, except that the defendant pulled down gradually some four or five panels of the old fence, which divided the two farms, and burned up the old rails for wood, thus putting this 90 poles of land in dispute in the same inclosure with a small lot on his farm which ran up to his house. But as this lot had been in meadow, also, there was no stock of any...