McEvoy v. Igo

By the Court, Sawyee, J. The complaint in this case does not state facts sufficient to entitle plaintiff to recover in an action under the Forcible Entry and Detainer Act. If plaintiff is entitled to recover in this action on the evidence introduced, it is on the ground, that, there was a forcible entry, or a forcible detainer after an unlawful entry, or both. The evidence was, perhaps, sufficient to show a forcible entry within the principle of Minturn v. Burr, 16 Cal. 107, and 20 Cal. 49, but no force, either in the [376]entry, or detainer, is alleged. After stating possession of the land, the complaint proceeds as follows: “ Plaintiff further alleges, that, being so in quiet and peaceable possession of said described premises, and entitled to the possession of the same, the said defendant, on or about the 25th day of February, 1863, unlawfully entered upon the said described premises, and took possession of the same, and the said defendant has ever siuce illegally and unlawfully detained possession of the same from the plaintiff against the form of the statute in such case made and provided, to her great damage, to wit, the sum of fifty dollars.” This is the entire averment with respect to the character of the entry and detainer. The facts alleged are sufficient to authorize a recovery in the action formerly denominated ejectment—nothing more. It is unnecessary to add, that neither a Justice of the Peace, nor the County Court on appeal, has jurisdiction in such an action.

Judgment reversed and cause remanded.