Garner v. Bonham

This case involves but one question, viz. as to whether the court erred in directing the jury to return a verdict in favor of the defendant. The only evidence in the case was given by the appellant, who was the plaintiff below, and it is set forth fully in the statement of the case. The action of forcible entry and detainer is founded upon sections 3346, 3347, Mansf. Dig. The complaint in the case sets forth a cause of action under these sections. But the proof or evidence submitted does not support the allegations in the complaint. The complaint was to the effect that on the 26th day of April, 1896, the plaintiff was in lawful and peaceable possession of the premises sued for, and that at that time the defendant forcibly entered thereon, and forcibly ejected him therefrom. The evidence in the case was to the effect that at the time mentioned the plaintiff was not in possession of the premises or lot sued for, but that he was in possession of only a portion of the premises; that the premises sued for had been divided into two lots, and that the defendant was in peaceable possession of one of the lots, by agreement of the parties. The evidence also shows that the forcible entry complained of *755did not take place in April, 189®, as alleged in the complaint but that it took place in April, 1895, a year previous thereto. It is a well-settled principle of pleading that the proof must support and. correspond with the allegations of the complaint. A party cannot in his complaint set forth one state of facts, and support them, so as to entitle him to recover, by proving a different and contradictory state of facts. The plaintiff having, after submitting the testimony indicated, rested his case, it was the duty of the court to direct the jury to return a verdict for the defendant. Counsel for the appellant, in his brief, does not fully and correctly set forth the facts as they were set forth in the complaint; and the counsel for appellee did not, in their brief, point out the imperfect statement contained in appellant’s brief. The contentions of counsel on both sides, in their respective briefs, are not responsive to the real issue which was presented to the court at the time the plaintiff rested his case, and this court will not consider the points raised by counsel in their respective briefs. As the case was presented to the court at the close of appellant’s testimony, it was the duty of the court to direct a verdict for the defendant. The judgment of the court is therefore affirmed.