Hewitt v. State
| Decision Date | 21 February 1933 |
| Citation | 146 So. 578,108 Fla. 335 |
| Parties | HEWITT, Judge v. STATE ex rel. PALMER.[*] |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Pinellas County; John U. Bird, Judge.
Proceeding by the State, on the relation of M. S. Palmer, for a writ of prohibition to be directed to Harry W. Hewitt, as Judge of the County Court of Pinellas County, and others. To review a final judgment making the writ of prohibition absolute, the County Judge and others bring error.
Reversed with directions.
Bussey, Mann & Barton, of St. Petersburg, for plaintiffs in error.
Blanchard & Hoffman, of St. Petersburg, for defendant in error.
Under the statutes of Florida, county courts are vested with jurisdiction of proceedings in relation to the forcible entry and unlawful detention of lands. Section 5169, C. G. L section 3325, R. G. S. The Constitution of the state provides that the circuit courts shall have exclusive original jurisdiction of the action of ejectment and of all actions involving the title or boundaries of real estate. Section 11 of article 5, State Constitution of 1885.
A petition was filed in the county court of Pinellas county in relation to the forcible entry and unlawful detention of certain lands. The defendant in that proceeding filed pleas of not guilty, that plaintiff was not in possession of the alleged premises at the time of the alleged wrongs, that the alleged premises were not the property of the plaintiff but were the property of the defendant, that the defendant M. S Palmer had for some time been the owner of the property involved, and that the trial of the cause would involve the title to the real estate involved in the petition, wherefore the court was without jurisdiction, because of section 11 of article 5 of the Constitution, to try said cause.
The county judge proceeded with the trial of the cause, whereupon a writ of prohibition was issued by the circuit judge. The case is here on writ of error to the final judgment by which the writ of prohibition was made absolute.
At common law a party forcibly dispossessed of lands was without a remedy for obtaining restitution of the premises, or for the recovery of damages for the entry or detainer, or even for an assault on his person in connection with an entry unless the force used was excessive, or the damages wantonly inflicted, since the common law conceded to a party with title to land and right to entry, the right to use actual force to recover possession, if forcible resistance to an entry was offered. Notes 18 Am. Dec. 139, 8 L. R. A. (N. S.) 426, 11 R. C. L. 1136.
The civil remedy for the restitution of premises, of which possession has been taken by a forcible entry or detainer, is consequently of statutory origin. The purpose of the statutory remedy was to dispense with the privilege allowed by the ancient common law to persons disseised or turned out of possession to use violent methods to reinstate themselves. The remedy was devised because it was early found that the exercise of the common-law right to seize possession by force, tended to lawlessness and was prejudicial to the public peace. Mosseller v. Deaver, 106 N.C. 494, 11 S.E. 529, 8 L. R. A. 537, 19 Am. St. Rep. 540.
The general purpose of the statutes relating to forcible entry and detainer, both in England and in this country, is that, regardless of the actual condition of the title to the property, the party in actual, peaceable, and quiet possession shall not be turned out by strong hand, violences, or terror. One who becomes guilty of a forcible entry, therefore, or of a forcible detainer after a peaceable but unlawful entry, was not only made subject to indictment, but was required to restore possession to the party from whom the property was so taken or detained, and in a proper case to pay damages, notwithstanding the entrant may have had the admittedly superior title, or the better right to possession taken.
The object of the statutes relating to forcible entry and unlawful detainer was to provide a summary legal remedy for restoring possession to prevent criminal disorder and breaches of the peace, which would likely ensue if no summary legal remedy existed, and the parties undertook to continue to resort to their own private common law means for enforcing their rights in such cases.
The action of forcible entry and detainer was designed to compel the party out of actual possession, whether the real owner and entitled to a present right of possession or not, to respect the actual possession of another, wrongful though it might be, by requiring him to resort to the law alone to obtain the possession he claimed to be his. Notes 19 Am. St. Rep. 544, 121 Am. St. Rep. 371, 8 L. R. A. (N. S.) 426; Iron Mountain & H. R. Co. v. Johnson, 119 U.S. 608, 7 S.Ct. 339, 30 L.Ed. 504.
The statutes relating to forcible entry and unlawful detainer have consequently so far altered the common law as to give a party forcibly dispossessed a right to the restitution of possession, without regard to the question of title. And indeed our statute so declares by providing that: 'No question of title, but only a right of possession and of damages, shall be involved in the action.' Section 5313, C. G. L., section 3460, R. G. S.
But an entry without force by a party entitled to possession, or an unlawful entry without actual force, violence, or menaces, and which has no other force than such as the law implies in every trespass, is not a forcible entry within the meaning of the statutes. A forcible entry or forcible detainer, as distinguished from a merely unlawful entry, or unlawful detainer, must be, as the law-writers have heretofore expressed it, 'with strong hand or multitude of people.' See Liddon v. Hodnett, 22 Fla. 271.
In the present case the record before the circuit judge shoued that the suit in the county court was predicated upon the alleged fact that the plaintiff Janet Waterman, being in possession of the premises described in the writ, was dispossessed thereof by the alleged unlawful and forcible acts of the defendant M. S. Palmer, in that the premises, upon which a two-story house was located, being securely locked, the said M. S. Palmer secured a key from a previous tenant, and had a new key made therefrom, and by this method secured an entrance to the house, but immediately left the same upon her presence being ascertained; that thereafter, plaintiff Waterman, in the forcible entry suit, placed a new lock upon the door and securely fastened all openings, notwithstanding which, the respondent M. S. Palmer again forced admission into said house by the use of a skeleton key, against the will of plaintiff in possession and who had so placed new locks on the house. [1]
The foregoing facts being set up in the return of the county judge, were sufficient to show that the real controversy pending before the county court for trial was one of forcible entry and unlawful detainer and that the suit was not the attempted employment of the remedy of forcible entry and unlawful detainer as a means of, in effect, trying the question of title to the real estate. This is true even though...
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