Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-07-02
OPINION
BY the COurt.

Petition for Rehearing upon substantially
the same grounds urged on appeal for
reversal Of the judgment.
The defendant, Ira D. Wines, filed with
= Justice of the Peace a written com
plant alleging that G. P. Strozzi. the re-
%spondent herein, on the Sth day Of Aug
ust, 1896, entered into and took forcih.e
and unlawful possession of certain lands
and premises in said complainIdtscribed
and that he still holds fnrcinle and uu-
lawful possession Of said property to he
injury and damage of the complainant.
and prayed fer the issuance of "A warrant
for the arrest of said Str0zzi. and for
damages. A warrant was issued accord
ingly. and the respondent was arrested
hereunder by the Constable and taken a
distance OF eight miles before said JUS
lice. The case was continued till the 2nd
day of September and The respondent ad-
mitted to bail on his own rec0gni2ance
On said last named date the respondent
appeared in court for trial, ~tkerenpon the
ease was dismissed by the Justice, @
The written request of Ira D. Wines. aud
the respondent was discharged.
The right TO bring said action and TO
have the respondent arrested therein was
based on the statute concerning iOrcihle
entries and unlawful detainers. ApueI-
lants' justification for said arrest is based
on SAID statute, claiming that they at
tempted to follow the provisions of said
statute and acted without malice and
upon probable cause.
Said statute provides that no entry
shall be made into any lands, tenements
or other possessions, but in case where
entry is given by law, and in such case.
only In a peaceable manner, not with
strong hand, moi with multitude of peo-
pie. and that when any such forcible
shall he made in a peaceable mRnne and
the possession shall De held bv force
against the person entitled to the DOS
session, the person so forcibly put out,
or so forcibly holden II of possession
shall be restored to such possession by
action to be commenced and prosecuted
ss in the said Act provided it further pro-
Vides that the complaint in such action
shall set forth the facts Oh which the
plaintiff seeks to recover, and shall de-
scribe the premises sought to be re-
covered, with reasonable certainty and
may charge that the defendant has acted
f~raudulently in making such tQrcible
entry, or holding such forcibIe pos
session, and may claim such damages as
the plaintiff may deem proper, and that
said compliant shall be verified SIS in all
other civil actions. And further that
upon presenting the complaint in said
action verified as aforesaid and charging
fraud in making such 70 rcible entry, or
in holding such possession by force TO
the Judge Of the Court in which such
action is brought, an order for the arrest
of the defendant or defendants shall be
made by such Judge, and all the prOvis-
ions of law from Section seventy-six TO
section ninety-eight, both inclusive'' of
the Civil Practice Act concerning arrest
and bail, shall bs, are hereby made the
rule of procedure to said arrest and bail
in said action Of forcible entry or forcible
d%etainer.'
The complaint in the action in the JUS
tees Court did not charge fraud on the
part of Strozzi either in making such for
chile entry or in holding such possession
by force, and was therefore radically de-
~fective, and did not authorize the issuing
of a warrant of arrest, and was wholly
insufficient to warrant the arrest of the
respondent, under said statute, besides a
Justice of the Peace has no jurisdiction
under said statute of an action for forci-
BILE entry or unlawful detainer.
1t appears that the respOndenthad pur-
chased a mortgage given by the owners
Of said land and premises to a third party
to secure a debt, that the mOrtgagors had
removed therefrom, owe three months
before the respondents entry into said
premises, and without leaving an occu-
pant thereof; that at the time of the re-
spondeht's entry he found no one in pos
session; that the defendant Eugene Wine,