Spurck v. Forsyth

• Decision Date: 30 April 1866
• Citation: 1866 WL 4509,40 Ill. 438
• Parties: PETER E. SPURCKv.ROBERT FORSYTH.
• Court: Illinois Supreme Court

40 Ill. 438

1866 WL 4509 (Ill.)

PETER E. SPURCK

v.ROBERT FORSYTH.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Peoria county; the Hon. S. L. RICHMOND, Judge, presiding.

This was an action of forcible entry and detainer, commenced by Robert Forsyth against Peter E. Spurck, before a justice of the peace in Peoria county, and removed by appeal into the Circuit Court, where a trial resulted in a verdict and judgment in favor of the plaintiff. The defendant thereupon took this appeal. Pending the trial below, the defendant moved to dismiss the suit on the ground of the insufficiency of the complaint; and whether the objection to the complaint was well taken is the only question presented. It is set forth in full in the opinion of the court.

Mr. H. M. WEAD, for the appellant.

Messrs. WILLIAMSON & MCCOY, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of forcible entry and detainer brought by Forsyth against Spurck, upon the following complaint:

“Robert Forsyth being duly sworn, according to law, says, that on the 20th day of December, 1859, he was, and still is, the owner of the following described real estate, to wit: Lot five, in block thirty-nine, in Bigelow & Underhill's addition to Peoria, and that on the day and year aforesaid, the said Robert Forsyth was in the actual, peaceable and quiet possession of said premises. And that afterward, to wit, on the 21st day of December, A. D. 1859, Peter E. Spurck willfully, and with force, entered into and took possession of said premises, and now holds the same, willfully and by force, against affiant; and after demand, made in writing, refuses to deliver the possession of the same to affiant, whereby the said Robert Forsyth says, that the said Peter E. Spurck is guilty of a forcible entry and detainer, pursuant to the statute in such case made and provided.”

A motion was made in the Circuit Court to dismiss the suit, for the insufficiency of the complaint, and overruled. This decision, among others, is assigned for error. We cannot hold this complaint to have been sufficient. It alleges that on the 20th day of December, 1859, Forsyth was in the actual possession of the premises, and that on the 21st day of December, 1859, Spurck forcibly entered. There is no averment that Forsyth was in possession on that day, or that Spurck entered upon his possession. By what rule of construction can we hold an averment that Forsyth was in possession on the 20th, to amount to an averment that he was so on the 21st? All the allegations in this complaint may have been literally true, and Forsyth still have had no cause of action. It is true, if a certain state of facts is proven to exist on a particular day, a jury is authorized to presume the same state of facts at a subsequent date, under what writers upon evidence call the presumption of continuance, but the same principle cannot be applied to pleading. If it is necessary for the pleader to aver the existence of a certain state of facts on a certain day, it is not sufficient to aver their existence on a prior day, for the plain reason that nothing is to be presumed in favor of the pleader. His pleading is to be construed most strongly...