Warren v. Ritter

• Decision Date: 31 March 1848
• Citation: Warren v. Ritter, 11 Mo. 354 (Mo. 1848)
• Court: Missouri Supreme Court
• Parties: WARREN v. RITTER & RITTER.

11 Mo. 354

WARREN

v.RITTER & RITTER.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

NAPTON, J.

This was a suit brought under the third section of the statute of Forcible Entry and Detainer. The complaint filed before the justice by the plaintiffs, alleged that Warren, the defendant, on the first of January, 1846. unlawfully detained certain premises described in the complaint, and continued to detain them, &c. The proceedings were removed by certiorari to the Circuit Court, and upon the trial before that court, neither party requiring a jury, the defendant was found guilty, and the plaintiff's damages were assessed at $109. A motion was made in arrest of judgment, on account of an alleged variance between the complaint and the judgment, and because no demand in writing was made. This motion was overruled. The defendant also moved for a new trial, because the verdict was against law and evidence. In support of this motion, an affidavit was filed by the defendant, stating that he was confined to his house by sickness at the time of the trial, and could not therefore make an affidavit for a continuance, which he had designed doing--that a material witness was absent, and that he had not summoned him, believing him to be absent from the State. The affiant also stated that he believed he had a valid defense. The motion was overruled.

Upon the trial it appeared that the plaintiffs had been in possession of the premises for two or three years, claiming to own the same by purchase from one Chauncey Lewis; that they had built two houses on the tract, and inclosed it by a fence; that they had leased the premisies to one O'Blenis, who took possession, and continued in possession until about the first of May, 1846, when the lease was canceled, and the premises re-delivered in the presence of the witness. A few days after this, defendant was found in possession. In what way he obtained the possession did not appear. A notice in writing was served upon him, demanding the possession, and this suit immediately thereafter instituted.

The motion in arrest of judgment was properly overruled. One of the reasons in support of the motion, the want of a written demand, had no foundation in fact. The alleged variance between the judgment and the complaint is supposed to be sustained by the fact that the complaint alleged a detainer on the 1st January, 1846, and the proof showed that the defendant was not in possession until May of that year. This is no variance. It was only material that the entry and detainer should have taken place within three years before suit brought.

The affidavit, upon which the motion for a new trial was based, is insufficient. Where an application for a new trial is made upon the ground of an absent witness, the court should be in possession of the facts expected to be proved, so that it may be seen whether his testimony would have been likely to change the result.

The principal ground taken for the reversal of the judgment is, that the facts in evidence do not make out a case of unlawful detainer within the meaning of our statute. The third section declares holding over without force, after demand in writing, to be one species of unlawful detainer; and also, that “when any person, wrongfully and without force, by disseizen, shall obtain and continue in possession of any lands, &c., and after demand made in writing for the deliverance of the possession thereof, by the person having the legal right to such possession, his agent or attorney, shall refuse or neglect to quit such possession, such person shall be guilty of an unlawful detainer.” The sixteenth section of the act says, that the “complainant shall not be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained the same.” The testimony in this case, it is clear, does not make the defendant guilty of the first class of unlawful detainers, and the only question can be, whether he is in the condition of a person who has “wrongfully, and without force, by disseizen, obtained and continued in possession,” after demand for the deliverance thereof.

The remedy of forcible entry and detainer, as prescribed in our statutes, is so dissimilar from the ancient proceeding known by this name, that it is in vain to look for aid in expounding our statute to the decisions of other courts upon statutes with a similar title, but essentially different in their provisions and objects. The proceeding was originally a criminal one, and was designed to...