Crow v. Mark, 52 Ill. 332 (1869)

Sept. 1869 · Illinois Supreme Court

52 Ill. 332

John Crow v. Samuel Mark.

1. Tenants in common—remedies as between themselves. One tenant in common of realty can not maintain an action of assumpsit against his co-tenant for his proportion of the rents, the latter having had exclusive possession. His only remedy is by an action of account under the statute, or by a bill in chancery.

2. Jurisdiction of justices of the peace. A justice of the peace has no jurisdiction in an action of account.

Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.

The opinion states the case.

Mr. J. W. Davidson, for the appellant.

Mr. John J. Glenn, for the appellee.

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action brought before a justice of the peace by one tenant in common against a co-tenant, to recover the plaintiff’s portion of the rent for a tract of land, of which the defendant had had exclusive possession. The case was brought by appeal to the circuit court, and on the trial there, after the plaintiff closed his evidence, the court, on motion of the defendant, dismissed the suit. There was no error in this. One tenant in common of realty can not maintain an action of assumpsit against his co-tenant for his proportion of the rents. His only remedy is by an action of account under the statute, or by a bill in chancery. Sherman v. Ballou, 8 Conn. 306 ; Wheeler v. Howe, Willes, 208. A justice of the peace has no jurisdiction in an action of account, and therefore this suit was properly dismissed.

Judgment affirmed.