Gillam v. Sigman

By the Court, Rhodes, J. This is an action of forcible entry and detainer. The plaintiffs allege that they and each of them were in the peaceable and actual possession of a town lot in the Town of St. Helena, and that while they were so in possession, on or about the 4th day of February, 1865, the defendant illegally and forcibly entered into and upon said premises, and ejected the plaintiffs, and from thence has forcibly detained, and still does forcibly [639]detain, the possession from the plaintiffs. The defendant, for answer, among other things, denies “that on the 4th day of February, 1865, said plaintiffs were in the possession of the premises described in the complaint,” and he denies the alleged forcible entry and detainer.

It appears from the evidence that upon the premises there were a blacksmith shop, a wood shop and a room adjoining the wood shop; that on the 4th of February, the time of the alleged forcible entry, Gillam was in possession of the wood shop, Potter in possession of the blacksmith’s shop, as Gillam’s lessee, and defendant in possession of the room adjoining the wood shop, occupying it with the permission of both of the plaintiffs; that the defendant on that day forcibly ejected Gillam from the wood shop, but did not interfere with Potter, nor forcibly enter upon any portion of the premises except the wood shop. The plaintiffs had verdict and judgment for the restitution of the whole of the premises.

The defendant assigns for error the refusal of the Court to give to the jury three certain instructions, which together amount to this : that unless the jury are satisfied from the evidence that at the timg of the forcible entry, both of the plaintiffs occupied the premises, and occupied them jointly, they must find for the defendant; in other words, that if the evidence shows that too many persons have been joined as plaintiffs, they must fail in the action.

Misjoinder of plaintiffs.

The rule at common law was that the objection, if it appear on the record, may be taken advantage of by demurrer, in arrest of judgment, or a writ of error; or if the objection do not appear on the face of the pleadings, it would be a ground of nonsuit on the trial. (1 Chit. Plea. 56.) But a different rule has been established by the Practice Act.

One of the grounds of demurrer stated in section forty of the Practice Act is a misjoinder of parties plaintiff or defendant, where the objection appears upon the face of the complaint and if the misjoinder does not so appear, it is provided