or stealth, entered upon the prior actual possession of another in real property, and detains the same; 2. Where a lessee holds over after the termination, or contrary to the terms of his lease; 3. Where the defendant continues in possession after a sale by foreclosure of a mortgage, or on execution, unless he claims by a title paramount to the lien by virtue of which the sale was made, or by title derived from the purchaser at the sale; in either of which cases, such title shall be clearly and concisely set forth in the defendant's pleading. Threats sufficient to induce fear of violent ouster, held, sufficient to bring the case within the corresponding provision of R. S., although personal violence was not threatened: Horrow v. Barker, 2 Gr. 201. The question involved in this action is the fact of possession alone, and not the right to possession. person may render himself liable to A this action by entering on his own premises by force, fraud. or stealth, even when he has the right to immediate possession: Stephens v. McCloy, 86-859; Emsley v. Bennett, 37-15; and, even though the party whose possession he invades is a mere trespasser: Lorimier v. Lewis, Mor. 253. Section considered : Jordan v. Walker, 52–647. SEC. 3612. The mere non-payment of rent by the time stipuRent in arrear. lated in the lease, does not enable a plaintiff to resort to this action unless expressly so stipulated in the lease. R. 3953. C. '51, 2363. Who may bring. R. 3954. C. '51,2364. Notice to quit. C. 51, 2365. Petition. R. 3956. C. '51, 2366. Before what R. 2 3957. SEC. 3613. The legal representative of a person who might have been plaintiff if alive, may bring this suit after his death. The "legal representative" is the ists without statutory enactment: executor or administrator. The right Berzley v. Burgett, 15–192. of the he.rs to bring such action ex SEC. 3614. Before suit can be brought in any except the first of the above classes, three days' notice to quit must be given to the defendant in writing. SEC. 3615. The petition must be in writing and sworn to. SEC. 3616. The proceedings may be had before a justice of the justice brought. peace of the township where the premises are situated, or if there is no justice therein able or qualified to act, they may be brought before some justice in any adjoining township. They shall be governed by the same rules as other cases before justices of the peace except as herein modified. C. '51, 2367. A justice of the peace alone has low it to be changed and entirely new original jurisdiction in such proceed- issues made: Dicks v. Hatch 10-380. ings, and, therefore, when an appeal The district court can acquire no is taken from his judgment, the ap-jurisdiction in such cases, not even pellate court should try the case as by stipulation of the parties: Easton made before the justice, and not al- v. Flemming, 51–305. SEC. 3617. The time for appearance and pleading must not be less than two, nor more than six days from the time the notice is served on the defendant. SEC. 3618. No adjournment shall be made for more than ten days, nor to any other place except by consent of parties. SEC. 3619. If the defendant is found guilty, judgment shall be entered that he be removed from the premises, and that the plaintiff be put in possession thereof, and an order of removal shall issue accordingly, to which shall be added a clause commanding the officer to levy the costs as in ordinary cases. vestigated. SEC. 3620. The question of title cannot be investigated in Title not inthis action. And nothing herein contained prevents a party from R. 73961. suing for a trespass, or from testing the right of property in any C. '51, 2371. other manner. The question of title, or right of this action: See notes to § 3611. possession, cannot be investigated in SEC. 3621. Thirty days' peaceable and uninterrupted posses- Bar. sion with the knowledge of the plaintiff after the cause of action R23962. accrued, is a bar to this proceeding. Neither the good faith with which | under this section, nor sufficient, in the defendant went into possession, the absence of the kind and length of nor the fact that he made improve- possession here contemplated: Fultz ments on the property, are material v. Black, 3–569. C. '51, 2372. R. 3963. SEC. 3622. An action of this kind cannot be brought in con- No joinder. nection with any other, nor can it be made the subject of coun- C. 51,2373. ter claim. moval. SEC. 3623. The order for removal can be executed only in the Order for reday time. SEC. 36233. An appeal or writ of error, taken in the usual C. 51, § 2374. way, if the proper security is given, suspends the execution for Effect of appeal costs, and may, with the consent of the plaintiff, prevent the war- error. rant of removal from being executed, but not otherwise. [This section was inserted by 15th G. A., ch. 41. It was in the Revision, but was omitted from the Code, probably by mistake.] or writ of K. 25965. SEC. 3624. The circuit court, on the trial of the appeal, may Restitution. issue an order of removal or restitution as the case may 31, 2376. require. R. 23966. GENERAL PROVISIONS. to successor. SEC. 3625. Every justice of the peace, upon the expiration of Official papers his term of office, must deposit with his successor his official R.23967. dock ts, as well as those of his predecessors which may be in his C. 51, ₫ 2377. custody, there to be kept as public records. All his official papers shall also be turned over to his successor. SEC. 3626. If his office becomes vacant by death, removal or county aufrom the township, or otherwise, before his successor is elected. R. 3968. the said docket and papers shall be placed in the hands of the C. 51, ¿ 2378. county auditor, to be by him turned over to the successor of the justice when elected and qualified. ditor. tion. C. '51, 2379. SEC. 3627. The justice with whom the docket of his prede- successor may cessor is thus deposited, may issue execution on or give a trans- issue execucript of any judgment there entered, in the same manner and R. 23969. with like effect as the justice who rendered the judgment might 13 G. Å. ch. 188 have done; and in case of the death, absence, or inability to act of any justice, or in case of the vacation of the office of any justice from any cause, then in such case, execution may be issued from the docket of said justice or transcript given therefrom, by any other justice in said township with like effect as might have been done by the justice who rendered the judgment. The certificate of an ex-justice in legal consideration: Brown v. Scott, relation to proceedings had before 2 Gr. 454. him, while in office, is not entitled to | determined. R. 23970-1. SEC. 3628. When two or more justices are equally entitled to Successor: how be deemed the successor in office of any justice as aforesaid, the county auditor shall determine by lot which is the successor, and certify accordingly; such certificate shall be in duplicate, one copy of which shall be filed in the office of such auditor, and the other given to such successor. C. '51, 2380-1. Interchange. C. '51, 2382. Special constables. R. 3973. 28. SEC. 3629. In case of sickness or other disability, or necessary absence of a justice at the time fixed for a trial of a cause or other proceeding, any other justice of the township may, at his request, attend and transact the business for him without any transfer to another office. The entries shall be made in the docket of the justice at whose office the business is transacted, and the same effect shall be given to the proceedings as though no such interchanging of official service had taken place. SEC. 3630. Any justice of the peace may, in writing, specially depute any person of suitable age to perform any particular duty properly devolving upon a constable, and for that particular pur9. G. A. ch. 174, pose he shall be subject to the same obligations and receive the same fees. If such person be appointed to serve an attachment, execution, or order, for the delivery of property, he shall, before levying upon such property, execute a bond to the state of Iowa in a penal sum of not less than two hundred dollars, to be fixed by the justice, with one or more freeholders as sureties, to be approved by and filed with the justice making the appointment, and the usual official oath shall be endorsed thereon and signed. For any breach of such bond, any person injured thereby may bring suit thereon in his own name, and recover the same damages as upon a constable's bond in like cases. No process. Sheriff and Justice his own clerk. R. 23976. C. '51, 2386. Successor to renew execu tion. R. 2 3977. C. '51, 2 2387. Board of super visors furnish docket. 11 G. A., ch. 53. A special constable appointed un- | form a particular duty, but it cannot der this section is not a peace officer be general, as to assist peace officers within the meaning of § 4109. to seize liquors: Foster v. Clinton Co.. The appointment may be to per-51-541. SEC. 3631. No process can issue from a justice's court into another county, except when specially authorized. "Process," as here used, does not | be served out of the county in some include original notices, which may cases: Klingel v Palmer, 42–166. SEC. 3632. The constable is the proper executive officer in a justice's' court, but the sheriff may perform any of the duties required of him. The powers and duties of the sheriff in relation to the business of the circuit court, so far as the same are applicable and not modified by statute, devolve upon the constable in relation to the justice's court. SEC. 3633. The justice may be regarded as his own clerk and perform the duty of both judge and clerk. SEC. 3634. When the term of office of a justice of the peace for any cause expires, his successor may issue execution, or renew execution in the same manner and under the same circumstances as the former justice might have done if his term of office had not expired. SEC. 3635. The board of supervisors of each county shall furnish to each justice of the peace of such county, a well bound blank record book of not less than four quires, with index, suitable for a docket, upon the certificate of such justice that the same is necessary for the business of the office. TITLE XXII. OF EVIDENCE. CHAPTER 1. OF GENERAL PRINCIPLES OF EVIDENCE. tent. his own be SECTION 3636. Every human being of sufficient capacity to Who compeunderstand the obligation of an oath, is a competent witness in R. 2:978. all cases, both civil and criminal, except as herein otherwise C. 51, & 2388. declared. Defendants in all criminal proceedings shall be com- Defendant petent witnesses in their own behalf, but cannot be called as wit- may testify in nesses by the state; and should a defendant not elect to become half. a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state during the trial, refer to the fact that the defendant did not testify in his own behalf; and should he do so, such attorney or attorneys will be guilty of a nisdemeanor, and defendant shall for that cause alone be entitled to a new trial. [As amended by 17th G. A., ch. 168, § 1, which added all after the word "declared " in the fourth line.] This section, in so far as it limits | rendering the defendant in a criminal witnesses to human beings "of suthi-prosecution a competent witness in cient capacity to understand the obli- his own behalf (Code Com'rs' Rep., p. gation of an oath," is not in conflict 137), but this substitute was rejected with Const., art. 1. § 4, such qualifica- by the legislature, and § 456 enacted, tion being assumed therein; and which (as it originally stood) made where a little girl of less than nine the defendant, in such cases, incomyears of age was not allowed to tes-petent as a witness, and it was theretify, it not appearing what other inquiry was made as to her capacity, the supreme court refused to interfere: Kilburn v. Mullen, 22-498. Lack of belief in God, or future conscious existence, does not render a witness incompetent, nor does it render incompetent a party's dying declaration; but proof of such fact is admissible to lessen the credibility of his testimony or of such declaration: The State v. Elliott, 45-486. fore held, that § 4556 was a limitation In a criminal prosecution, an accomplice is a competent witness for the state: The State v. Hudson, 50-pealed, and the defendant rendered a 157, 161. competent witness in such cases.) As to evidence in criminal cases, see §§ 4556-4572. The code commissioners, in their report, recommended the adoption of a section as a substitute for Rev. § 3981, Credibility. C. '51, 2389. Interest. Same: when SEC. 3637. Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening its credibility. Proof that a person does not believe | credibility of his dying declaration; in God, or a future conscious state, is but does not affect his competency: admissible to lessen his credibility See notes to preceding section. as a witness, and also to affect the SEC. 3638. No person offered as a witness in any action or proceeding in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto, except as provided in this chapter. This section is broad enough in its criminal case the right to testify in language to embrace criminal cases, his own behalf: The State v. Gigher, and did it stand alone, would proba- | 23-318; and see note to § 3636. bly be held to give defendant in a SEC. 3639. No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, and no husband or wife of any said party or person, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination, deceased, insane, or lunatic; against the executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or guardian of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor, or guardian, shall be examined on his own behalf, or as to which the testimony of such deceased or insane person or lunatic shall be given in evidence. This section excludes as to certain matters the tes imony, first, of parties to the action, and, secondly, of persons interested therein; that a party is shown not to have any interest in the matter, will not render him competent: Williams v. Barrett, 52637. The interest contemplated as sufficient to exclude a witness, is such as would, at common law, disqualify him. Where the witness has equal interest on both sides, he will not be disqualified: Goddard v. Leffingwell, 40-249. The interest sufficient to disqualify must be present, certain, and vested. It will not be sufficient that at a prior time the witness might have been a holder of an equitable interest in the property in controversy: Zerbe v. Reigart, 42-229. The true test of such interest is, that the witness will either gain or lose by the direct, legal operation and effect of the judgment, or, that the record will be legal evidence for or against him in some other action. If the interest is of a doubtful nature, the objection goes to the credit of the witness, and not to his competency: Wormley v. Hamburg, 40-22. The section explained, and held, that a plaintiff coming within its terms could not testify as to personal transactions between himself and deceased, even to rebut the testimony of decedent's widow: Canaday v. Johnson, 40–587; and that the fact that defendant was introduced as a witness, would only remove this prohibition as to those personal transactions to which he testified, and not as to others: Wood v. Brolliar, 40–591. It is only as to personal transactions between himself and deceased that a party is, under this section, prohibited from testifying: Sypher v. Savery, 39–258, 264: and, hld, that this section would not exclude the evidence of an heir, as to conversations which he heard between deceased and defendant: Sweezey v. Collins, 40540. |
