White v. Veitch

• Citation: 197 P. 983,27 Wyo. 401
• Decision Date: 23 May 1921
• Docket Number: 976
• Parties: WHITE v. VEITCH
• Court: United States State Supreme Court of Wyoming

197 P. 983

27 Wyo. 401

WHITE v. VEITCH

No. 976

Supreme Court of Wyoming

May 23, 1921

ERROR to the District Court, Natrona County; HON. CHAS.E. WINTER Judge.

Forcible entry and detainer proceedings by Robert J. Veitch against Henry L. White and others, begun in the Justice Court and appealed to the District Court. Judgment was for plaintiffs and defendant brings error.

Reversed and remanded.

Hagen Stanley & Murane, for Plaintiffs in Error.

The complaint was fatally defective in that it did not comply with the requirements of the statute. (5353 Comp. Stats 1910.) The justice was without jurisdiction, (Lowman v. West, 36 P. 258 (Wash.) The District Court acquired no jurisdiction since the complaint could not be cured by amendment there. The cause should have been dismissed. (Brown v. Grady, 16 Wyo. 151.) An amendment of a void complaint will not save the jurisdiction, (Lowman v. West, supra., Dennis v. Wood, 48 Cal. 363.) The evidence in the District Court was insufficient in any event to support the action. (Campbell v. Foster, 30 A. 223.) There was no authority to make a lease. (Thiel Co. v. McClure, 142 F. 953; Fillmore v. U. P. R. R. Co. 2 Wyo. 95; Kozel v. Dearlove, 32 N.E. 542; Clement v. Co. 67 A. 82.) The pretended lease is void. (3751 Comp. Stats. 1910; Marshal v. Rugg, 6 Wyo. 283; McDowell v. Simpson, 27 Am. Dec. 338; Minnesota Co. v. McCrossen, 85 N.W. 1019.) Estoppel must be specially pleaded.

George W. Ferguson and Nichols & Stirrett, for Defendant in Error.

The amended petition met the requirements of the statute of forcible entry and detainer. Defendant held a lease proprly executed by an authorized agent; The judgment is amply supported by the evidence. Failure to object to the petition in Justice Court was a waiver of defects in the complaint. The cause was tried de novo in District Court. The petition was amended to conform to the facts proven, (Sec. 4437 Comp. Stats. 1910. Lowman v. West), cited by plaintiff is not in point. In that case a demurrer was filed in Justice Court and was overruled. There was a ratification of the lease which amounts to a plea of estoppel. (Matzger v. Co. 141 P. 900.) The evidence showed that Stewart had authority to make the lease which was subsequently ratified by plaintiff's conduct. (Hassard v. Tomkins, 84 N.E. 174; Clark v. Hyatt, 118 N.Y. 563).

BLUME, J. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, J.

The defendant in error filed in justice court of Natrona County his petition in forcible entry and detainer, alleging (omitting the formal parts) "First: That he is the lessee of the following described premises, and entitled to the immediate, exclusive and continued possession of the same, being (describing the premises). Second: That defendants are in possession of said premises and occupy and hold the same from the possession of the plaintiff, without any right to the possession thereof." Then follow allegations of the notice given to quit the premises, and the prayer. An answer was filed and trial had, which resulted in favor of the defendant in error. An appeal was duly taken to the district court, where the case was tried by the court without a jury. At the beginning of the trial the plaintiffs in error, for the first time, moved the court to dismiss the action, and objected to the introduction of any evidence, for the reason that the petition fails to state facts to constitute a cause of action; that it is apparent from the pleadings that the court has no jurisdiction in the case, and that it is not an action of forcible entry and detainer under the statute. The ruling was reserved until the close of the case, when the above objections were renewed but overruled, and defendant in error was permitted, over objection, to file an amended complaint. Judgment was entered for the defendant in error, a motion for new trial, assigning, among other things, the overruling of the above motion as error, was filed and overruled, and the case is here upon a petition in error, assigning, inter alia, as error the overruling of the motion made at the trial.

The allegations contained in the original petition filed in the justice court are very similar to the allegations contained in the petition involved in the case of Jenkins v. Jeffrey, 3 Wyo. 669, 29 P. 186. In that case the plaintiff claimed to be the owner of the premises in controversy, but stated nothing as to who was entitled to possession. In the case at bar the plaintiff below alleges that he is lessee, and entitled to the possession of the premises in controversy. The differences are not vital and the court in the Jenkins case held that the petition in that case was insufficient as a a petition in forcible entry and detainer, and that the justice was without jurisdiction to try the action. That case was certified to the district court upon motion of the defendants, where they appeared and filed answer, and the case was there tried as a case involving title. Under these circumstances this court held that the defendants could not properly be heard to object that the district court assumed to try the case, of which it had original jurisdiction, as an action in ejectment, but in the case at bar no such course was followed. Here the case came to the district court on appeal; the plaintiffs in error did not voluntarily submit to the trial in the district court, but objected. The case was tried throughout as a case of forcible entry and detainer, and the defendant in error at the close of the testimony filed an amended petition so as to bring the case within some of the provisions of our statute providing for such actions. We cannot hold, therefore, that the district court could have tried the case at bar as an action in ejectment, as though originally brought in that court, but we might rest the decision herein upon the holding in the Jenkins case, that the original petition filed in the justice court gave the justice no jurisdiction over the subject matter. Inasmuch, however, as the court in that case did not fully discuss the question as to what facts are necessary to be alleged in order to give the justice jurisdiction, and inasmuch as the defendant in error contends that even if the original petition failed to state a cause of action, that the defect was cured when the amended petition was filed in the district court, we shall state the law applicable to this case somewhat more fully.

A civil proceeding for forcible entry and detainer or unlawful detainer was not known to the common law. The proceeding is statutory, summary in its nature, may, under our statute, work a forfeiture of possibly valuable rights within a period of a few days, and according to the universal rule, the statute conferring jurisdiction must be at least substantially complied with in the method of procedure prescribed by it, or the jurisdiction will fail to attach, and the proceeding will be coram non judice and void. (19 Cyc. 1147; 24 Cyc. 1436; Taylor L. & T. (9th Ed.) § 721; Tiffany L. & T., p. 1786 and cases cited below.) Sec. 6625 of the Compiled Statutes of 1920 provides that in such cases the plaintiff, before the justice may proceed with the case, must file a complaint, describing the property in controversy, "and the facts upon which he relies, in order to recover the premises, which must be sustained by proof or the action must be dismissed." This complaint is not even dispensed with in case the defendant does not appear. It is, therefore, the basis of the action, without which the justice is powerless to act. Summary as the action is, drastic as may be its consequences, the legislature evidently deemed it wise to guard against the misapplication of this proceeding. Whatever may have been the reasons of its adoption, the statute is imperative, and the courts cannot ignore the plain provisions which a co-ordinate branch of our government has a right to make. See Clendenning v. Guise, 8 Wyo. 91, 55 P. 447. Statutes similar to ours, requiring the facts to be stated in such complaints, are found in Wisconsin, Texas, New Jersey, Utah and perhaps other states. Under statutes such as this, the facts must be clearly stated, so as to bring the case within the provision of the statute relied on, and if any material fact is omitted, the defect is fatal, and the justice acquires no jurisdiction of the subject matter. This is the rule even in states where no such specific statutory provision exists. (Emerson v. Emerson, (Tex. Civ. App.) 35 S.W. 425; Fowler v. Roe, 25 N.J.L. 549; State v. Lane, 51 N.J.L. 504, 18 A. 353; Barnes v. Cox, 12 Utah 47, 41 P. 557; Haskins v. Haskins, 67 Ill. 446; Eveleth v. Gill, 97 Me. 315, 54 A. 756; Karahalies v. Dukais, 108 Me. 527, 81 A. 1011; McDermott v. McIlwain, 75 Pa. 341; Kiphart v. Brennemen, 25 Ind. 152; Burgett v. Bothwell, 86 Ind. 149; 19 Cyc. 1150; Caswell v. Ward, 2 Doug. 374; 24 Cyc. 1437; Taylor L. & T. (9th Ed.) § 721; Tiffany L. & T. p. 1786.) See also Gulledge v. White, 73 Tex. 498, 11 S.W. 527; Laffey v. Chapman, 9 Colo. 304; 12 P. 152; Lasater v. Fant (Tex. Civ. App.) 43 S.W. 321; Conley v. Conley, 78 Wis. 665, 47 N.W. 950, where it was said that the reasoning is but an application of the doctrine applied to affidavits filed in attachment and garnishment proceedings.

Section 6621 of our statutes provides for two classes of cases in which an action of this kind may be brought; 1st, where an unlawful and forcible entry is made, and, 2nd; where a lawful and peaceable entry has been made, but where the premises are subsequently unlawfully or forcibly held. The original petition filed herein is obviously not sufficient to make out a case under the first of the above classes (19 Cyc. 1151, 1156), nor does it state any facts so as to bring it within any of the classes specified in ...