The herald., 1897-03-03
A WRONG CAUSE
Judge York Holds That One Cause Cannot Be
Snbstitu.ed for Another

1t is curious to note how often cases
are carried into court upon wrongly
stated grounds of action. Sometimes
this proves fortunate for the one bring
ing the suit, for occasionally a stronger
fight is put up on side issue than If it
had been made upon the main issue of
the case.
Yesterday Judge York handed down
an opinion in the case of Ballero Bo-
jorques against Eulalia Bojorques de
Rangel and Francisco Rangel that did
not fall within the category Of the for
tunate exceptions. The case was de-
GiGed on appeal from the Justices court
ms one nr-->i"a township. the suit be-
A demurrer to the anIsn,and detains,--
was sustained on tfIe-sraund -.e,.n I
complaint did not state facts~~...m.sas .ma In tnf
to constitute a couse of action. and that
the court had no Jurisdiction AS con
sequence the action was dismissed and
the appeal was taken upon the law in
the case.
IF the complaint states a cause of
action in forcible entry or detainer,"
says the court. "it rests upon the pro-
visions of paragraph of section 1850
c. c. F.. viz, Every person is guilty
of forcible detainer who. in the night
time, or during the absence of the occu-
upon real property. and who after de-
mand made for the surrender thereof
for the period of five days refuses TO
surrender the same to such former oc-
cupant.' AS alleged, there was no yio-
lation nor circumstances of terror. nor
turning out of the occupant by actual
force or menacing conduct-only an un-
lawful and forcible entry without right
In the day time during the absence Of
the occupant and a demand for possess
sion and refusal to surrender But IL
If alleged further, that plaintiff and his
wife were occupants under a contract
TO purchase. The wife was not absent
but forbade the entry OF defendants. An
entry in the day time without violence or
menacing conduct in the presence of the
occupant is not, under our code a forci-
Die entry. It would not be contended
that the entry alleged would be forcible
mad the plaintiff not been absent His
co-occupant was not absent. The prop
erty was not vacant by reason of the
absence Of one occupant. The posses
sion of the wife was the possession of
the husband. Ejectment under such
circumstances can be maintained: but
forcible entry, even under the enlarged
scope OF the remedy made by our stat
utes, does not cover such case Actions
IN forciDle entry can not be made a sub
sutute for actions Of ejectment The
-"N pgiiS penal III character can not
be construed to extend beyond its LET
ter. The allegation of title of plaintiff
and his wife serves only as probative
matter to establish their peaceable pos
session. 1t could be stricken out as i'm
material.
1T Is doubtful whether there is an AL
legation Of the peaceable possession by
PLAINTIFF of the land entered by defend
ants. If rot, the omission could have
been corrected by amendment. If how
ever on the main allegations of the
complaint the justice was satisfied no
amendment could be made to make a
cause OF action in forcible entry or de-
tairer he should not have allowed leave
TO amend.
y do not think a cause of action in
forcible entry or detainer was stated
ard must assume that the justice was
satisfied no cause of action under the
facts Of the case could have been stated
II follows that no cause of action is
stated except in ejectment. &; cause of