Ballance v. Curtenius , 8 Ill. 449 ( 1846 )

The Opinion of the Court was delivered by

Caton, J.^*

Ballance commenced a suit of forcible entry and detainer against the defendants before a justice of the peace of Peoria county, which was taken by appeal to the Circuit Court, where, on motion of the defendants, the cause was dismissed for want of jurisdiction, apparent on the face of the complaint.

The complaint shows, that one Armstrong, by means of false keys, &c., forcibly entered, where entry was not given by law, into a certain house, (describing it,) and forcibly kept the said complainant out of the possession of said house for some time, when he transferred the possession to the defendants, who have hitherto forcibly held possession, &c. The complaint further states, that Ballance had for years been in the quiet and peaceable possession of the premises, and that the defendants took the possession from Armstrong, with a full knowledge of the illegal manner in which it had been obtained.

The several cases in which an action for forcible entry and detainer may be sustained, have been so repeatedly laid down by the Court, and particularly in the case of Whitaker v. Gautier, (ante, 443,) decided at this term, that it is unnecessary here to repeat them. This complaint is manifestly insufficient to bring the case against Curtenius & Griswold, within any of the provisions of the statute. There is no pretence but that they obtained the possession peaceably, nor is it stated but that they were entitled by law to the possession of the premises, at the time they took possession. For aught that appears in this petition, they may have bought the land, while Armstrong was in possession, from the Government or some other rightful owner, or even from Ballance himself. Their legal right to enter upon and take possession of the house is not denied, nor is the propriety of their conduct even questioned by the complaint. All that is alleged against them is, that they took the possession when Armstrong yielded it up to them, they knowing at the time that he had obtained it wrongfully. Even admitting that they could be made wrong doers by relation, which we are not now prepared to admit, still it should affirmatively appear that they entered without right, and only under the wrong doer. Here it is not pretended, that the defendants knew anything of the forcible entry of Armstrong at the time it was made, or that they claim any benefits under it. This case, then, as before stated, is not brought within any of the provisions of the statute. It is not shown that the defendants entered into these premises when entry was not given by law, or that they made such entry by force, nor does it appear that they held the premises, after the expiration of a tenancy. The Court properly decided that the complaint was insufficient to give the justice jurisdiction. It also assigned for error, that the application of the plaintiff to amend his complaint was denied. Even admitting the right of the Circuit Court to grant such leave, still its refusal cannot be assigned for error. At most, it was a matter of discretion like the amendment of a declaration, or other pleading.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.

* Purple, J. having been of counsel, did not sit in this case.