| Appeal from Circuit Court, Clay County |
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| Todd Vs. Bates |
| ACTION: Reversed |
Court of Appeals of Kentucky. Todd v. Bates. Jul. 1, 1813. On a warrant of forcible detainer the inquisition found "that the right of possession was in the plaintiff," and on a traverse the jury found the defendant guilty of forcible detainer. It was held that the inquisition was defective, and that the finding on the traverse could not cure the defect. Opinion of the Court by Chief Justice BOYLE. Judge OWSLEY did not sit in this cause. THE appellee sued out, from a justice of the peace of Clay County, a warrant for a forcible detainer, against the appellant, and the jury found by their inquest "that the right of possession was in the appellee." The appellant traversed the truth of the inquest, and the cause being removed to the Circuit Court in the mode prescribed by law, the appellee replied to the traverse of the appellant, asserting the inquest to be true, and issue was thereupon joined to the country. On a warrant for forcible detainer, the inquisition found 'that the right of possession was in the plaintiff.' Upon a traverse, the jury found the inquest true, and superadded that the defendant in the warrant was guilty of the forcible detainer. The inquest is so defective in not finding the force, that restitution cannot be awarded thereon, and the finding on the traverse cannot cure the defect. The jury empanneled to try the issue, found by their verdict "that the inquest was true, and that the appellant was guilty of the forcible detainer complained of in the warrant;" and judgment of restitution was thereupon given for the appellee, from which this appeal is prosecuted. In the progress of the trial in the Circuit Court, several points were decided against the appellant to which he filed exceptions. These points we have no doubt were correctly decided by that Court; but an objection is taken here, probably for the first time, to the sufficiency of the inquest, upon which the appellant must prevail. Objections to an inquest, for want of form, the objections to the inquest in this case go to the substance, not to the form, It has not found the forcible detainer, without which this summary mode of proceeding cannot be resorted to. It is apparent, therefore, that the inquest is so radically defective, that it could not have warranted a judgment of restitution by the magistrate; and it necessarily follows that it could not on being found true by the verdict of the jury before the Circuit Court, warrant that Court in giving such a judgment. The verdict of the jury having superadded to their finding the inquest true, "that the appellant was guilty of the forcible detainer complained of in the warrant," cannot, we apprehend, help the case or cure the defect of the inquest. The latter part of the verdict is evidently not within the issue nor responsive thereto; and a fact found by the verdict not within the issue, cannot be regarded by the Court as constituting the basis upon which a judgment could be founded. The judgment is therefore erroneous and must be reversed with costs, and the cause remanded, that the Circuit Court may enter up a judgment quashing the inquest, etc. |
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