Gambar halaman
PDF
ePub

Post & Hobby v. Love-Opinion of Court.

ascertainment of debts and liabilities, how is it possible to know whether anything will ultimately be available for the payment of legacies, and what can a jury determine? We repeat, that without some statutory regulation not in existence here such garnishment proceedings are altogether impracticable, at least until a personal duty to pay is imposed upon the executor by the order of the Probate Court; a case not now before us.

It is alleged by the plaintiffs in the garnishment by way of traverse that there are more than sufficient assets of the estate to pay debts, expenses and legacies, and that E. C. Love, the executor, had agreed with the judgment debtor to pay him the amount of the legacy, and an inquiry should be had to ascertain this fact, which, it is urged, will fix the present liability of the executor.

!f

This cannot affect the question of the legal duty of the executor as such to answer to the writ of garnishment. Love, the executor, has made any contract binding him personally to pay money to the debtor, he cannot be held in his official capacity, in which he has been here summoned; and no personal judgment can be had against him, because this garnishment is against him in his representative character seeking to charge the estate, and not against him personally.

It is evident from the pleadings and allegations here that the plaintiffs seek to reach the legacy only. The judgment dismissing the writ of garnishment is affirmed.

Greeley v. Spratt-Syllabus.

JONATHAN C. GREELEY, APPELLANT, VS. LEONIDAS W. SPRATT, APPELLEE.

1. In proceedings under the act relating to forcible entry and detainer, upon a complaint for a forcible entry and withholding, the peaceable possession of complainant and the entry by force by the defendant and putting and keeping complainant out and damages therefor, are the questions in issue.

2. The law forbids a forcible entry whether defendant has title or right of possession or not; in this proceeding there can be no inquiry into the title. If the party entering has a right to the possession and another is in peaceable possession the party having the right must resort to the law to obtain it, unless he can do so without force and in a peaceable, open manner.

3. Testimony showing that plaintiff had been in possession of a room for several weeks occupying it as an office with his library and furniture, and that his property was, without his consent, in the night time, removed from the room by the defendant's directions, and plaintiff was by force prevented by defendant's servant from re-entering, and another person was put by defendant in possession as a tenant, is sufficient to sustain a complaint for forcible entry and unlawful detainer; and the complaint having been filed within a few days after such ejection and occupancy by the tenant, such facts afford presumptive evidence upon which the jury are authorized to find that the defendant continued to hold possession against plaintiff at the time of filing the complaint, there being nothing to show that defendant or his tenant ceased to occupy the premises so taken possession of. 4. When the plaintiff had peaceably occupied premises for several weeks and is dispossessed by force without process of law by defendant, it is not material, in a proceeding for forcble entry and detainer, whether the plaintiff was originally a trespasser or that defendant may have a legal right to the possession. The gist of the proceeding under the statute is the forcible entry and ousting plaintiff from a peaceable possession contrary to law.

5. In estimating damages for the wrongful dispossession and withholding of premises under the forcible entry and unlawful detainer

act, the jury may take into consideration the rental value of the premises.

Greeley v. Spratt-Opinion of Court.

6. Where there are conflicting statements of witnesses the jury must determine the facts from a fair consideration of the whole testi

mony.

Appeal from the Circuit Court for Duval county.
The facts of the case are stated in the opinion.

Geo. Wheaton Deans for Appellant.

Cockrell & Walker for Appellee.

THE CHIEF-JUSTICE delivered the opinion of the court: This was a proceeding under the statute relating to forcible entry and unlawful detainer. The complaint was made by Spratt "that Jonathan C. Greeley hath forcibly turned him out of and unlawfully and against his consent withholds from him the possession of a certain room, towit: the room in the three-story brick building situate in the city of Jacksonville in said county at the southwest corner of Pine and Forsyth streets immediately to the right of the stair-case leading to the third story of said building," and prays restitution and damages. The complaint was filed and summons issued August 3, 1880. The cause was tried in November, 1882, with a jury. Verdict for plaintiff in statutory form with damages assessed at $224. Defendant appeals from the judgment upon this verdict, a motion for a new trial having been denied.

Spratt testified that he took possession of the room in question about the first of July, 1880, as his own property to be used as a law office and put in his office furniture, table, chairs, desk, book-case and books, and was there seyeral weeks. He left in the evening, having locked the door. Next morning he went to the office as usual and found his office furniture out; found a colored man there and a white man, Warriner, taking the lock from the door. Was denied permission to enter. The rental value of the room

Greeley v. Spratt-Opinion of Court.

was about fifteen dollars per month. When he offered to open the door there was something said by parties inside. Witness said, "what does this mean?" Don't recollect the words in reply, but understood from them that he could not come in without using force.

On cross-examination defendant's counsel asked the question, for the purpose of showing that Spratt was simply an intruder or trespasser, "by what means did you originally get possession of this room?" The question was objected to as immaterial and the objection sustained, to which ruling defendant excepted.

Charles Warriner testified on behalf of plaintiff that he was a clerk for defendant, that defendant told him to put Brown in possession. Got a skeleton key and opened the room and put Spratt's goods in the hall. Refused to permit Spratt to enter and turned over the possession to Brown, the colored man. Was told by Mr. Greeley that Spratt was there and had no business there. Brown was put in possession in the evening. Next morning went and put a new lock on the door. Brown put his foot upon the door when Spratt tried to get in. Then informed Mr. Greeley what I had done, and he said he was satisfied. All I did was at the instance and direction of Greeley, who afterwards paid for the lock and key.

Brown testified that he rented the room from Mr. Greeley, but had not been able to get possession till that morning.

On the part of defendant Mr. Greeley testified that he never forcibly turned L. W. Spratt out of the room and never instructed any one to eject him. Rented the room to Brown and gave him the key in the summer of 1880. Never requested or instructed Warriner to assist Brown in taking possession. Previous to renting the room to Brown had never seen any one in possession. Witness had the

Greeley v. Spratt-Opinion of Court.

key and never gave it to any one else. All he had to do with it or taking possession by Brown was that he rented it to Brown as the agent of the owners and gave the key to Brown. Warriner reported to me that he had found some things in the room and put them out in the hall, and I do not recollect making any reply.

On cross-examination he said, I did not know that Spratt was in the room of my own knowledge; Judge McLean told me that he was there. It was the first I knew of Warriner's going to the room when he reported what he had done.

The Judge charged the jury that "the peaceable possession and the forcible entry are the questions at issue. The law forbids forcible entry, whether the party has title or not, and there can be no inquiry into the title of the property. If the party entering has right to the possession he must resort to the authority of law to obtain such possession." This was excepted to by defendant.

The Judge charged further: "If the jury find from the evidence that the plaintiff was on or about the first day of July, 1880, in the possession of the room described in the complaint, using the same for his office, and that while so possessed the defendant, Greeley, by himself or his agent, instructed for that purpose, and whether said Greeley was present or not, by the use of a skeleton key opened the door and entered said room in the night time, and in the absence of the plaintiff, and turned out of said room the office furniture of said room so belonging to the plaintiff, and resisted the said plaintiff the next morning by closing the door upon him, and kept possession of said room until and at the exhibition of this complaint, then the jury must find for the plaintiff."

This was also excepted to by defendant.

Counsel for appellant assigns for error-1, that the ver

« SebelumnyaLanjutkan »