State ex rel. Sherrill v. Nations, 23 N.C. 325, 1 Ired. 325 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 325, 1 Ired. 325

STATE on relation of SAMUEL SHERRILL vs. JAMES NATIONS & al.

In an inquisition and proceedings had before justices under oui statute of Forcible Entry and Detainer, (Rev. St. c. 49,) if the verdict of the jury sets forth that “ the xelator was possessed as tenant for years of A. B.” that is sufficient without specifying what that term is.

An objection to an inquisition fqr forcible entry and detainer, that the Telator has elected to proceed by indictment, is of no avail, as our statute does not give the justice any power to fine.

When the proceedings on an inquisition of Forcible Entry and Detainer before Justices of the Beace are brought up by certiorari to the Superior Court, that court has no right to order a traverse to be tried before them, as the travprse either has been triedfor might have been tried before the jury required to be summoned by the justices below, and no appeal is allowed by statute, the remedy being a summary one.

If the justices were guilty of misconduct in the trial below, either by receiving improper testimony or rejecting proper testimony or otherwise, the Superior Court can correct this misconduct; hut the affidavits to obtain a certiorari must state explicitly fhp facts upon which the interference of the Superior Qpurf is called for.

Upon a proper affidavit a mandamus as well as a certiorari will be granted to compel the justices to return all the proceedings, as they aptualiy occurred.

This cage wag commenced in the (Superior Court of Law for the county qf Haywood by a writ of Rccordari and Certiorari, issued at the Fall Term, 1838, of that court, on the petition and affidavit of the defendants, and directed to certain justices of the peace of that county, who had had an inquisition of forcible entry and detainer at the instance of the plaintiff against the defendants. The justices made the fallowing return, which was filed of record to wit: (a)

“State of North Carqlina, J

Haywood county. Jj ss'

A record oí the proceedings had before Joseph Keener and J. L. Dillard, Esquires, justices assigned to keep the peace for said county at Holland’s old fields, on Oconoluftee * ' river in said county, under the act of Assembly of 1837, jjev._ ^ c> 49; s_ <p.

(a) Note. As no case of Forcible Entry under our Revised Statute lias before been brought before the Supreme Court, the Reporter hopes he shall be pardoned for giving* this record more in detail, than he has been in the habit of doing. Of course no opinion is expressed as to the correctness of the precedent, except so far as the Supreme Court has confirmed it.

0n the third da7 of March, 1838, the sheriff, A. G. Howell, returned before us the following precept:

State of North Carolina, 1 Haywood county. j

Joseph Keener and J. L. Dillard, Justices of the Peace for said county, to the Sheriff of said county, greeting:

We command you, that you cause to come before us at Holland’s old fields on the Oconolultee river, in the county aforesaid, on the third day of this instant, twenty-four sufficient and indifferent men, of the neighborhood of Oconoluftee aforesaid, in the county aforesaid, being freeholders, to inquire upon their oath of a certain entry and detainer made with strong hand, as it is said, into the messuage and possession of one Samuel Sherrill, tenant for years of the heirs of James Holland, at Oconoluftee aforesaid, in the county aforesaid, against the form, of the statute in such case made and provided; and you are to return upon every of the jurors by you in this behalf to be empannelled, twenty shillings of issues at the aforesaid day, and have you then and there this precept; and this you shall in no wise omit, upon the peril which shall thereof ensue. Witness the snid Joseph Keener and John L. Dillard, Esquires, in the county aforesaid, on the first day of March, 1838.

(Signed) JOSEPH KEENER, [Seal.]

J. L. DILLARD, [Seal.]

Upon the back of which the sheriff made the following endorsement and return, to wit:

“ According to the within warrant, I have summoned the following within named persons as Jurors of Inquiry,” (here follow the names of thirteen persons) “and do hereby endorse to each juror twenty shillings, which makes twenty-four dollars. I set my hand and seal.

A. G. HOWELL, Sh’ff.”

. Before the jury were called over, the defendants, being present, were informed by the sheriff that they could make any objection to the jury, as they were called, and before they were sworn, upon which they challenged John B. Love, and another was sworn in his place. John P. Adams and Nelson G. Howell were then examined as witnesses in behalf of the complainant, the first of whom proved an entry by defendants with force, and the second some threats by defendants to detain by force. Whereupon the defendants called one Sherrill, son of complainant, as a witness tor them, and no objection being made by complainant, he was permitted to be examined. He proved his father’s possession under a lease of Thordas Love, agent of Holland’s heirs, the entry of defendants on said possession, and that said lease had not expired at the time of said unlawful entry by defendants. Whereupon the jury retired and returned a verdict of forcible entry and detainer against the defendants, which was afterwards drawn up in the following form and signed by the jurors, (to wit:)

State of North Carolina, i Haywood county. ) ss’

An inquisition for the State, taken at <fcc., the 3d day of March, 1838, by the oaths of (here the jurors were named) good and lawful men of the said county, before Joseph Keener and John L. Dillard, two of the justices &c., who say upon their oaths aforesaid, that Samuel Sherrill, of the county aforesaid, planter, long since lawfully and peaceably was possessed as tenant for years of the heirs of James Holland, dec’d, of and in one messuage, &c., (describing it,) and his said possession so continued until the defendants (naming them) and other malefactors unknown,- on the 28th day of February, 1837, with strong hand and' armed power into the messuage aforesaid, &c. unlawfully did enter and him the said Samuel Sherrill therefrom, with strong hand, expelled: and the said Samuel, so dispossessed and expelled from the said messuage, &c., from the said 28th day of February, 1837, until the taking of this inquisition with like strong hand and armed power, did keep out, and do yet keep out, to the great disturbance of the peace of the State, and against the form of the statute in that case made and provided. In testimony whereof as well the said justices as the inquest above named to this inquisition, interchangeably set ^1^1' hands and seals the day and year first above written,

(Signed and sealed by the Jurors and the Justices.)

State of North Carolina, ? ss Haywood County, )

jj. js aqjU(]geq by us in this case, according to the foregoing inquisition, that the defendants (naming them) beingguilty of forcible entry and detainer and the costs of said inquisition, amounting to twenty-four dollars, therefore judgment is rendered against the said defendants (naming them) for the said amount. Witness our hands and seals, this 3d day of March, 1838.”

(Signed and sealed by the Justices.)

Upon which the following writ of restitution, (signed and sealed by the said justices) issued to the sheriff:

[Here follows the writ, and the return of the sheriff, that he had dispossessed the defendants and put the plaintiff in possession of the premises. Then a certificate of the justices that they had returned á trite and perfect record of their proceedings, &c.]

The cause came on for hearing at Fall Term, 1840, before hishonor Judge Bailey, when thedefendants moved to quash the proceedings, which m’ótion was overruled by the court. His Honor then, upon motion of the defendants, permitted an issue to be made up and! tried by a jury as to the forcible entry and detainer, upon which trial the plaintiff, in submission to the opinion of the court,- suffered a nonsuit. From the judgment of the court the plaintiff appealed to the Supreme Court.

Francis for the plaintiff.

Bynum for the defendant.

Daniel, Judge.

This is a writ of Recordari, removing into the Superior Court an inquisition and proceedings, had before justices under the statute of Forcible entry and Detainer.

In the Superior Court the defendants moved to quash, first, on the ground that the term of the relator was not set out in the yerdict of the jury of inquisition.- The verdict states that the relator “ was possessed as tenant for years of the heirs of James Holland.” This, we think, is sufficient. The 6th section of our act of Assembly (Rev. St. c. 49) is copied from the stat. 21 Jac. 1 c. 15. Under that statute, the verdiet must shew that the party injured was possessed of such an estate as will bring him within its provisions; and upon this ground, it has been resolved that such a verdict, setting forth in general that the party was possessed, or that he was possessed for a certain term, without adding, that it was for years, is not good. 1 Hawk. PL C. 505, sec. 38. But if the verdict finds that the person entered upon was possessed for a certain term of years, it is good and sufficient. The verdict in this case has found that the relator was possessed of such an estate, as brings him within the 6th section of our' act of Assembly.

The second ground, taken by the defendants to quash, was that the relator had elected to proceed by indictment. There is nothing in the case sent here to shew, that an indictment had ever been preferred; much less a conviction or acquittal on it. The act of Assembly does not give to the justice any power to fine. The court was correct in overruling both positions taken. The defendants then tendered a traverse; the court received it, and caused a jury to be impannelled, when, as the case states, a judgment of nonsuit was entered. We are of the opinion that the court erred in permitting a traverse in this case. In England, under their statutes, an' inquisition taken before justices is frequently ex parte and in the nature of a bill of indictment. If the jury find the original entry to be illegal and a forcible detainer, the justice cannot award restitution, without giving the defendant an opportunity of traversing the inquisition; he should call him to answer, for no one ought to suffer without an opportunity to defend himself. 1 Hawk. P. C. 541, sec, 60. If the defendants have notice, they may tender a traverse to the inquisition, (it must be in writing, it is said;) and then the justices or justice should award a venire facias, whereon a traverse jury must be returned to try the force and other material allegations. 1 Hawk. P. C. 541, 2 Chitty’s Gen. Prac. 240, 241. And no restitution shall be awarded until the traverse jury find the force, unless-the defendant should decline 3 Salk. 169. 2 Chit. Gen. Prac. 241. If the de„ fondants decline to- traverse, it is then like a submission to an indictment, and the judgment may be rendered. In ^ case before us the defendants had actually all the benefit of a traverse before the jury that took the inquisition. They were present and examined witnesses; they declined to tender any formal traverse to the inquisition, which was found, -and therefore the award of restitution by the justices was agreeable to law. The defendants, when they obtained this recordari, did not make any affidavit of misconduct or irregularity in"the justices, in receiving improper testimony or refusing proper testimony, or otherwise. If there had been misconduct in- the- justices, it certainly could have been corrected in the Superior Court. 2 Chitt. Gen. Pr. 241. Rex v. Jones, 1 Stra. 474 Bac. ab. Forcible Entry, G. The mode of correcting it is, on a motion for a certiorari, to state explicitly all the objections to the proceedings; and if it be apprehended that the justices will not faithfully return all the proceedings- as they occurred, but will attempt to state them in an improved manner, then, upon a special- affidavit of the facts, a mandamus as well as a certiorari may be obtained to compel them to return every stage of document and proceeding according to the facts. And if the court should be of opinion against the sufficiency of the proceedings before the justices, they will then quash the conviction, and must, as of course, issue a writ of re-restitution. 2. Chitt. Gen. Pr. 241. The power given to justices to make inquisition of forcible entry and detainer is summary; and it was intended that justice should be done in an exp editions manner. There is no appeal gi-ven by the statute. If the defendants have notice and the traverse jury find the force,, and the proceedings are- regular, or if the defendants decline to traverse, they must restore the possession-,, if the relator be tenant for years, or has a greater estate in the land-. If the defendants have any title, they must bring their action of ejectment, and obtain possession in a peaceable manner.

This case, as it stood before the Superior Court, was only in the nature of a writ.of error. The duty of the court, on a motion to quash, was only to examine the case recorded and sent up there, and see whether the taking; of the inquisition and the awarding of restitution by the justices were agreeable to law.

We are of the opinion that the order made, permitting the defendants to traverse the inquisition in the Superior Court, and the proceedings on that traverse, must be reversed, and that judgment be rendered, affirming the proceedings before the justices.

Per Curiam. Judgment accordingly.