State ex rel. Barge v. District Court

It must be conceded that the complaint in the action of Barge v. Scheik, which action, originally instituted in District Court, was in ejectment, and also'to recover damages for the unlawful withholding of possession of the real property in question, *486contained all of the allegations necessary to constitute a cause of action under tbe provisions of tbe forcible entry and unlawful detainer act, (1878 G-. S. ch. 84, §§ 11-14, inclusive, as amended by Laws 1881, Ex. Sess., cb. 9,) and that tbe District Court, when ordering judgment for recovery of possession and for damages for withholding possession, found all of tbe facts required to entitle tbe plaintiff, Barge, to a writ of restitution bad bis action been brought and determined, as provided in said statute, in a court of a justice of tbe peace.

In case it bad been so brought and determined, there could have been no stay of proceedings which would have delayed tbe issuance of a writ of restitution, nor would an appeal by defendant, Scheik, have bad that effect. A writ of restitution could have been issued, and tbe complainant put in immediate possession of tbe premises. So that tbe question now before us is whether tbe course of procedure prescribed for tbe conduct of actions in justices’ courts, and under that statute, tbe complainant being successful, can be followed, and tbe very summary remedy known as tbe “writ of restitution” awarded and issued where the action has been instituted in District Court in tbe nature of ejectment, all of tbe essential facts being present and found.

Tbe theory upon which counsel for tbe relator urge bis right to have granted tbe relief sought by this proceeding is that, as tbe District Courts of tbe state are courts of general jurisdiction, having original jurisdiction in all.cases, except as otherwise provided by tbe constitution, such jurisdiction has not been exclusively conferred upon courts of justices of tbe peace in actions of forcible entry and of unlawful detainer; that tbe District Courts also have jurisdiction; and that, as all of tbe facts required to maintain an action under cb. 84, § 11, supra, were set forth in tbe complaint in Barge v. Scheik, and were found by tbe court, it was actually an action under that statute, in which Barge was entitled to every remedy provided therein.

Tbe action of forcible entry as well as of unlawful detainer is a statutory proceeding, tbe practice and procedure being prescribed and regulated as for justices’ courts. It is an expeditious and summary way of reaching persons who make forcible entry upon lands, or who, having entered peaceably, unlawfully bold over after their *487right so to do has expired. Upon justices’ courts, and upon some municipal courts by later legislation, jurisdiction over the subject-matter, and in this particular form of action, has been conferred, but there is nothing in chapter 84 indicating an intention to permit this form of proceeding in District' Courts. In fact the various provisions of the statute relating to the procedure repel the idea of such an intent, and render it impossible to pursue the remedy in District Courts. Such courts have jurisdiction, and exercised it in Barge v. Schiek, to try and determine the same question, namely, a plaintiff’s right to recover possession of demised premises, but, necessarily, in accordance with the practice and procedure in ordinary civil actions. That a court of inferior jurisdiction is empowered to proceed and to reach the same result in a more summary manner is no reason for asserting that a court of superior jurisdiction can use the same methods. Nor can it be said that by the provisions of chapter 84 jurisdiction in excess of that possessed by District Courts has been conferred upon courts of justices of the peace, for it is not a question of jurisdiction at all. It is simply one of practice and procedure. The landlord from whom a tenant withholds possession of the leased premises after his term has expired may proceed in ejectment in District Court, and, according to the course of practice in those courts, being there permitted to recover possession and also damages for the withholding, in the same action. Or he may pursue in a justice’s court the more summary method provided in chapter 84, in which case he waives, for the time being, his right to recover damages for the wrongful detention. The choice of tribunals and remedies is open to him, precisely as it is in certain actions for the recovery of money, or in replevin, where the sum claimed or the value of the property in controversy does not exceed $100. If the plaintiff chooses, he may bring his action in justice’s court, where the proceedings are simple, the trial speedy, and the entry of judgment cannot be stayed by mere order of the justice; or he may resort to the District Court, where the procedure is much more formal, the trial not so quickly reached, and where the court may, within a reasonable discretion, exercise its power, and stay the entry of judgment and other proceedings. We agree with the court below, and are of the opinion that the section in chapter 84, supra, as amended, providing that in actions for the *488recovery of real property held under a written lease after the expiration of the term specified in the lease, restitution of the premises shall he made notwithstanding an appeal, does not apply to actions originally brought in District Court.

The order to show cause is discharged.

(Opinion published. 55 N. W. Rep. 630.)