Alexander v. Wheeler

COLEMAN, J.

The appeal presents for review the correctness of the judgment of the circuit court, overruling a motion to quash a writ of habere facias possessionem issued by the clerk of the circuit court. In September, 1889, O. M. Wheeler, the appellee, recovered a judgment in the statutory action of ejectment against G. W. Alexander. This judgment will appear in the statement of the case. The clerk issued a writ of possession in March, 1891, which was executed by the sheriff. The return of the sheriff shows that by Virtue of this writ of possession O. M. Wheeler was put in possession of one acre of land lying in the north-east corner of the one-eighth of the section sued for, and denominated a “nook.” In February, 1894, upon the motion and at the request of the said Wheeler, the clerk issued a second writ of possession, and acting under this writ, the. sheriff dispossessed Alexander of other lands, than the one acre in the nook, and put Wheeler in possession of a strip of land on the border of the northern, western and southern line of the west half of the north-east quarter of section 10, this eighty acres being the lands described in the complaint. The question of merit is, whether the j udgment of the court upon the verdict of the jury in the ejectment suit authorized the clerk to issue a writ of possession for more than the one acre called the nook. We are of opinion that the one acre described in the judgment is all that the plaintiff recovered in that action. The verdict of the jury undertook to find where the northern, western and southern boundary line of W. i of N. E. i of section ten was located, and the judgment of the court, following the verdict, adjudged such to be the boundary lines. There is nothing in the verdict nor in the j udgment, which shows that plaintiff recovered to that line or recovered other than the one acre of land. When the sheriff executed the writ issued in March, 1891, by putting the plaintiff Wheeler in possession of the acre of land in the nook, the judgment of the court as to the land recovered was satisfied.

The special plea of the defendant, and the replication of the plaintiff in the ejectment suit have contributed to the confusion which has grown out of the verdict and judgment. They were inappropriate. The case should have been tried upon the general issue, and the verdict and judgment should have been more specific. The contention of the parties at this time, as to where the boundary line was established by the verdict and judgment of the court, illustrates the inappropriateness of the issues upon which the ejectment suit was deter1 mined. We cannot aid either party in this proceeding. Several questions have been argued, but the question decided disposes of the case.

The court erred in overruling the motion to quash the writ.

Reversed and remanded.