Randall v. Falkner

By the Court, Crockett, J.: This is an action for forcible. detainer, under the third section of the forcible entry and detainer Act of April 2d, 1866. (Stats. 1865-6, p. 769.) Judgment was entered for the plaintiff, and the defendant appeals, assigning as error certain rulings of the Court during the progress of the trial, as shown by bills of exception brought up in the record.

After filing his answer the defendant moved to quash the summons as insufficient; but the motion was properly denied. The only purpose of the summons is to bring the defendant into Court; and when he appears and answers he waives any defect-in the summons. Whether the summons be good or bad, its end has been accomplished when the defendant appears .and answers. Nor did the Court err in striking out a portion of the defendant’s answer and excluding the proof of the averments so stricken out. These allegations were, in substance, that the land in contest is a portion of the public domain of the United States; but is at present withdrawn from entry and sale; that in 1867 the defendant erected a cabin on it with the intention to acquire a right to it as a homestead, under the laws of the United States, so soon as the land should be subject to entry for that purpose; that in the following year one Ewing, against the will of the defend[246]ant, and without right, removed the cabin, and afterwards sold whatever right he had to the land to plaintiff, who in November, 1869, hauled to the land lumber for the purpose of erecting a house upon it, and plowed the greater portion of the land and put it in grain; that, thereupon, the defendant consulted an attorney as to his rights, and the attorney, together with the land officers of the United States for that district, advised him to enter upon the 'land and erect a cabin, with a view to acquire a prior right to a homestead claim as soon as the land should become subject to entry for that purpose; that he was qualified to acquire a homestead right; and acting under the advice aforesaid, and with a bona fide intention to acquire such right, he entered in February, 1870, peaceably and quietly upon the land, and has ever since remained in possession. These facts, if proved, would not have justified the entry of the defendant upon land in the actual occupancy of the plaintiff. It is not pretended that the land was then subject to entry under the homestead Act; and though it was public land, non constat, that it ever will be subject to entry as a homestead. The mere hope or expectation, however well founded, that at some future time the land might become subject to entry for that purpose, could afford no justification for an invasion of the actual possession of the plaintiff. However honestly the defendant may have believed that he had a right to enter,' his entry was unlawful; and having been made in the absence of the plaintiff, and the defendant having refused to surrender the possession, after a proper demand, the case comes fully within the third section of the Act. Upon these facts proved the Court committed no error in the giving or refusal of instructions, nor in denying the defendant’s motion to retax the costs. For aught that appears the plaintiff" may have had every reason to believe that the witnesses who were summoned, but not sworn, would be essentially necessary to rebut the defendant’s proofs; and their testimony