Bell v. Haun

SHAW, J.

Appeal from judgment on default and from order denying motion to vacate and set aside such default and judgment.

The action purports to be for the forcible entry and detainer of premises at the time occupied by plaintiff. It is alleged that defendants "did wrongfully and unlawfully, and without the consent of plaintiff, turn the plaintiff out of the possession thereof by force and violence, and did throw the personal property of plaintiff then on said premises into the public road”; and that by reason thereof plaintiff is damaged in the sum of $500, and will continue to be damaged in the sum of $5 for each and every day the possession thereof is withheld from plaintiff by defendants, followed by a prayer for restitution of the premises and $500 damages for the alleged forcible entry, and the further sum of $5 per day for each day the possession is withheld from plaintiff by defendants. It is not alleged in the complaint that defendants detained the possession of said premises from plaintiff. By summons served on defendants, September 18, .1907, they were required to appear and answer within three days of service thereof. Defendants failed to answer as commanded by said summons; whereupon, default was entered, upon which judgment was, on September 24, 1907, rendered for damages as prayed for, and whereby it was further ordered that plaintiff recover possession of the premises, and that he have issued a writ of restitution requiring the sheriff to place him in the peaceable possession thereof.

[43]

Upon the ground of inadvertence and excusable neglect defendants moved the court to set aside the default and vacate the judgment, which motion was by the court denied.

The procedure adopted is that prescribed by chapter IV, title III, of the Code of Civil Procedure, known as the “forcible entry and detainer act.” Its purpose is clearly indicated by its title, which is: “Summary proceedings for obtaining possession of real property in certain cases.” Section 1167 of this act provides that in proceedings instituted thereunder the summons issued shall require the defendant to answer within the time designated therein, which shall not be less, however, than two days before the return day. The summons issued complied with the provisions of this section, and required defendants to answer within three days after service thereof. Appellants’ contention is that the complaint does not state a cause of action for forcible entry and detainer, and, therefore, the provisions of section 1167, wherein the defendant can be required to answer in less than ten days, do not apply; in short, that the action is not one for the restitution of property, does not come within, and is not controlled by, any provision of the forcible entry and detainer act, but is an action to recover damages for a trespass, as to which they were entitled to ten days within which to answer; that the entering of default and rendition of judgment thereon before the expiration of such ten days constituted error, for which the judgment should be reversed.