Pratt v. Stone

• Decision Date: 31 March 1882
• Citation: 10 Bradw. 633,10 Ill.App. 633
• Parties: EMILY H. PRATTv.ELIZABETH A. STONE ET AL.
• Court: United States Appellate Court of Illinois

10 Ill.App. 633

10 Bradw. 633

EMILY H. PRATT

v.ELIZABETH A. STONE ET AL.

Appellate Court of Illinois, First District.

March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county. Opinion filed May 9, 1882.

This was an action of forcible entry and detainer brought by Emily H. Pratt against Elizabeth A. Stone, Samuel A. Downer and Augustus A. Parker, in a justice's court, to recover possession of a certain dwelling-house and premises situate in the city of Chicago, from which the plaintiff claimed, that she had been forcibly evicted by the defendants. The case having been taken by appeal to the circuit court, it was then tried before a jury. The plaintiff below was the only witness. She gave evidence tending to show that July 14, 1879, the premises in question, No. 1419 Michigan avenue, Chicago, being vacant and unoccupied, and she claiming to be the rightful owner of the same, peaceably entered and took possession of the same with her goods and in person; that while she was so in the possession of said premises, and claiming to be the owner, the defendants, by their authorized agent, forcibly and against plaintiff's will entered upon plaintiff's possession of said premises, and then and there caused the plaintiff to be arrested, without any authority in law for so doing, and to be taken from said premises and to a police station by a policeman, where she was detained some two hours, without any legal cause therefor; that during such time the defendants caused plaintiff's goods to be removed from said house, whereby, and by other illegal acts of force, the defendants obtained possession of said premises, which they have since retained.

The case shows that while plaintiff was on the stand as a witness, the court permitted the defendants' counsel, against the specific objection of plaintiff's counsel, to cross-examine the plaintiff in respect to matters as to which she gave no testimony on her direct examination, viz.: as to a prior possession of said premises, by one H. O. Stone. There was no evidence in the case in regard to such prior possession, except that so called out on cross-examination of plaintiff; nor was there any evidence whatever tending to show any prior possession by either of the defendants, or any right in them to such possession, under said H. O. Stone.

At the conclusion of plaintiff's evidence she rested her case, whereupon defendants' counsel asked the court to instruct the jury to find for defendants, on the ground that plaintiff had not made out her case. The court so instructed, and the jury rendered their verdict for defendants, which the plaintiff moved the court to set aside and grant a new trial. The court refused, judgment was given against the plaintiff, and she brings the case here, assigning said instruction, among other things, for error.

Mr. E. K. SMITH, for appellant; that any entry of premises made against the will of the occupant is forcible and unlawful within the meaning of the law, though the occupant is wrongfully in possession, cited Reeder v. Purdy, 41 Ill. 279; Farwell v. Warren, 51 Ill. 467; Comstock v. Brosseau, 65 Ill. 39; Haskins v. Haskins, 67 Ill. 446; Dearlove v. Herrington, 70 Ill. 251; Fabri v. Bryan, 80 Ill. 182; Knight v. Knight, 3 Bradwell, 206.

If a party is in peaceable possession, not even the owner has the right to gain possession by force. He must resort to his legal remedies: Cooley on Torts, 323; Dilworth v. Lee, 52 Mo. 130; Huftalin v. Misner, 70 Ill. 205; Dudley v. Lee, 39 Ill. 339; Mann v. Brady, 67 Ill. 95; Allen v. Tobias, 77 Ill. 169; Morrison v. Kelley, 22 Ill. 610; Wilder v. House, 48 Vt. 280.

Actual possession, though without title, will enable a party to maintain forcible entry and detainer: Wall v. Goodenough, 16 Ill. 415; Graham v. Peak, 1 East, 244.

A motion to exclude plaintiff's evidence, is in the nature of a demurrer to evidence, and is erroneous, if there is any evidence tending to prove plaintiff's case: Penn. Coal. Co. v. Conlan, 101 Ill. 95; Smith v. Gillett, 50 Ill. 291; Holmes v. C. & A. R. R. Co. 94 Ill. 444; Crowley v. Crowley, 80 Ill. 469; Schonur v. Heckla Ins. Co. 50 Wis. 579.

Where there is evidence tending to establish plaintiff's case, it is error to instruct the jury to find for defendant: Hubner v. Feige, 90 Ill. 208; Geurdon v. Corbett, 87 Ill. 252; Mellick v. De Seelhorst, Breese, 171.

As to the effect of a demurrer to evidence: Phillips v. Dickerson, 85 Ill. 15; Fent v. T. P. & W. R. R. Co. 59 Ill. 349, Co. Litt. 71, 3 Black. Com. 314; Armstrong v. Armstrong, 29 Ala. 338; Donaldson v. Waters, 30 Ala. 175.

Messrs. MONROE & BALL, for appellees, cited Ill. Cent. R. R. Co. v. Cobb, 94 Ill. 55.

MCALLISTER, J.

The plaintiff herself was the only witness on the trial below. Her evidence, given on her own behalf, was clearly sufficient to support a verdict in her favor. It shows that the premises in question being vacant and unoccupied, she peaceably and without force, entered and had actual possession by her goods and in person; that while she was so in the peaceable possession of the premises, the defendants, by their authorized agent, entered upon that possession, against the will and without the consent of plaintiff, and caused a policeman to arrest her without any legal cause, and take her away, so that defendants could thereby obtain possession of said premises; and that by said means, and other illegal uses of instrumentalities of the law, the defendants did obtain such possession, which they have since retained. If these facts do not constitute a case--a cause of action--under the Forcible Entry and Detainer Act, then no case under that act can be made out. Such being the plaintiff's evidence, the defendants counsel asked the court to instruct the jury to find for the defendants, on the ground that plaintiff had not made out her case The court so instructed, and the jury returned a verdict accordingly. The instruction made it imperative upon them to do so. This practice of granting such instructions has, where it prevails, superseded the ancient practice of a demurrer to evidence. But answering the same purpose, it has been held that it should be tested by the same rules as a demurrer to evidence. The latter admits not only the facts stated therein, but every conclusion which a jury might fairly and reasonably infer therefrom. Phillips v. Dickerson, 85 Ills. 15, and case...