Leach v. Sutphen

• Decision Date: 01 July 1881
• Citation: 10 N.W. 409,11 Neb. 527
• Parties: STEPHEN W. LEACH, PLAINTIFF IN ERROR, v. EMILY M. SUTPHEN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

10 N.W. 409

11 Neb. 527

STEPHEN W. LEACH, PLAINTIFF IN ERROR, v. EMILY M. SUTPHEN, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1881

ERROR to the district court for Washington county. Tried below before SAVAGE, J.

AFFIRMED.

Bullard & Walton, for plaintiff in error.

L. W Osborn, for defendant in error.

OPINION

BY THE COURT.

This is an action for forcible entry and detention, tried before a justice of the peace in Washington county. A judgment for the possession of the premises was rendered in favor of the defendant herein, which was affirmed by the district court. The errors assigned in this court are, in substance, that the judgment is against the weight of the evidence.

It appears from the evidence that at the May term, 1860, of the district court of Washington county, one Bartlett Brown obtained a judgment against the plaintiff in error for the sum of $ 188.00 and costs, and that an execution was issued on said judgment and levied upon the real estate in controversy, which was sold to said Brown; that the sale was thereafter confirmed and a deed made to the purchaser; that Brown thereupon conveyed to one Samuel Baker who conveyed to the defendant, and she and those under whom she claims have paid all the taxes due on the premises, and that the plaintiff had occupied the premises since February 1879.

The plaintiff introduced in evidence a patent from the United States for the premises in question, which was issued prior to the recovery of the judgment. He also offered to introduce evidence tending to impeach the judgment, which was excluded. This testimony was properly excluded. The action of forcible entry and detainer is not the proper remedy to try questions of title, but merely the right of possession. Here the defendant was shown to have a continuous paper title from 1861 to the time of trial, and possession until the plaintiff entered forcibly upon the premises. This was sufficient to entitle her to recover in this action, and there is no testimony in the record that would justify a judgment in favor of the plaintiff. The judgment must therefore be affirmed.

The defendant objects that the bill of exceptions signed by the justice was not submitted to her or her attorney before being signed. It is the duty of the justice to make up a correct bill of exceptions and sign the same when so required, but the provisions of sections 311 of the code of civil procedure as...