Caldwell v. McVean ( 1904 )

Opinion of the court by

Chief Justice BURNAM

Dismissing.

The appellant, Edwin Caldwell, Tbrouglit this action against the appellee, S. D. McVean, upon a traverse bond, executed pursuant to section 464 of the Civil Code of Practice, for the rental value of the land of which he had been illegally deprived by the forcible entry and detainer of appellee. The answer was in two paragraphs. The first denied all damages, and the second pleaded affirmatively that the defendant held the legal title to the land in controversy, and was entitled to the beneficial use thereof during all the time sued for. A general demurrer was interposed to the second paragraph of the answer, which was overruled. Appellant thereupon in his reply denied that appellee was the owner of the land. Upon the issues thus formed appellee introduced as proof his title papers, which conduced to support his claim of ownership. No testimony was introduced by either party upon the defense relied on in the first paragraph of the answer, and, the action being, submitted to the court for trial without the intervention of a jury, it was adjudged by the trial court that as McVean was the legal title holder of the land during all the time of the controversy between him and appellant out' of which the suit arose, no recovery could be had by appellant, and his petition was dismissed. Motion and grounds for a new trial having been overruled, he has appealed. It is not controverted by counsel for appellee that a forcible entry and detainer proceeding under subsectiou 2 of section 452 of the Civil Code of Practice does not in any wise involve the title to the land in dispute, but simply whether the entry was without the consent of the person having actual possession. It is insisted that a different rule prevails when an action had been instituted upon a traverse bond; that in this class of actions title in the plaintiff is essential to the recovery of rents or damages .for deprivation of the land by reason of the forcible entry and detainer. It may be admitted that in some jurisdictions no damages .are recoverable in actions of this character, but we think the general rule is that such damages as arej the natural and proximate restilt of the forcible entry and detainer may be recovered from the traverser, and that the reasonable value of the rents and profits of the land so illegally detained is an element which should be taken into consideration in estimating such damages. See 13 A. & E. Ency. of Law (2d Ed.) 773, and authorities cited. But the question is hardly an open one in. this State, as section 464 of the Civil Code of Practice expressly authorizes the recovery of damages for withholding the possession during the pendency of the traverse in either the circuit court or court of appeals, in addition to the reasonable expenses of the traversee in defending the traverse. We are therefore of the opinion that the trial .court should have sustained the demurrer to the second paragraph of appellee’s answer, hut, as the claim for damages is only for $100 and costs, this court has no jurisdiction to grant relief. The appeal is therefore dismissed.

Petition l’or rehearing by appellant overruled.