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Since the question of title cannot be tried in the action, the defense that plaintiff's deed was procured by fraud, is invalid, and cannot be set up in the action. 22 Again, when, in order to determine whether either party has the right to the paramount legal or equitable title, then the rights of the parties cannot be determined in the action.23 Equities between the parties cannot be determined, but the action will lie to recover from the settler with color of title, the lands to which plaintiff has the right of possession.24 In concluding the discussion of the propositions hereinabove set forth the author would suggest to the practitioner, to keep in mind always, that the action of forcible entry and detainer will determine only whether the plaintiff or defendant have, on the face of the instrument under which either claim the right to the possession, the right to the immediate possession. If, in order to determine this right of immediate possession, the

Bennett, 37 Ia. 15; Brown v. Fagins, 55 N. W. (Neb.) 1,048; Railroad v. Johnson, 119 U. S. 608, 7 Sup. Ct. 340. An action of forcible entry and detainer may, under the statute of this territory, as construed by the Supreme Court of Kansas, before its adoption, be maintained by one who was, without right, in the actual and peaceable possession of the premises, even against the true owner, who ousts him of such possession by force; and in a case where it is shown that the plaintiffs were in the actual and peaceable possession of certain town lots, lots, with the buildings thereon, in one of which the plaintiffs were running a saloon, and the sheriff arrested the plaintiffs under a charge of violation of the liquor laws, and removed them and their goods and furniture from the building, and while they were under

arrest for a short time, the sheriff permitted the officers of the city who were standing by, to enter into possession of the building, and keep the plaintiffs therefrom, it is held, that the plaintiffs may maintain their action of forcible entry and detainer, and that in such case, it is not error to sustain an objection to the introduction of evidence tending to show that the sheriff had a right to arrest the plaintiffs, and take their goods and furniture from the premises, and that the defendant had a deed to said premises, and that the plaintiffs had no right to the possession thereof.

22 Dysart v. Enslow, 7 Okla. 386, 54 Pac. 550.

23 Jones v. Seawell, 13 Okla. 711, 76 Pac. 154.

24 Cope v. Braden, 11 Okla. 291, 67 Pac. 475.

title must be corrected in any way, or a trust declared, then the action must be brought in the district court for that purpose.

Sec. 811. The complaint.

The action is brought by filing the complaint in the justice's court. The property for the possession of which the action. is brought should be described accurately. However, a slight error in the description, which does not mislead the defendant, will not be regarded.25 And the complaint need not allege with particularity all the facts relied on. It will be sufficient if it contains the language of the statute.20 Sec. 812. No pleadings required of the defendant.

The defendant in an action for forcible entry and detainer, is not required to file any pleadings; and since a defense may be interposed, it is not reversible error to strike from the files any special defense which may have been interposed.27

Sec. 813. Procedure-The summons.

The summons cannot issue in the action until the plaintiff has filed his complaint in writing under oath, with the justice, which must particularly describe the premises so entered upon and detained, and which must set forth either an unlawful or forcible entry and detention, or an unlawful and forcible detention after a peaceable or lawful entry of the described premises.

28

25 Congor v. Olds, 1 Okla. 232, 22 Pac. 337; Murphy v. Lucas, 2 Okla. 255.

26 Greenameyer v. Coate, 12 Okla. 452, 72 Pac. 377; McClung v. Penny, 11 Okla. 477; 69 Pac. 499; Rice v. West, 10 Okla. 1, 33 Pac. 706; Schlegel v. Link, 105 Pac. (Okla.) 652, overruling Rice v. West, 33 Pac. (Okla.) 706; Barto v. Abbe, 16 Ohio, 408; Brown v. Burdick, 25 O. S. 260.

27 Smith v. Finger, 15 Okla. 120, 79 Pac. 759; Oklahoma City v. Hill, 4 Okla. 521, 46 Pac. 568.

28 Snyder, 6,433; Wilson, 5,090; Kansas, 5,018 (1889); Nebraska, 1,966 (1907); Blaco v. Hallar, 1 N. W. 978; Moore v. Parker, 80 N. W. 572; Lock v. Skowell, 91 N. W. 572; Blanchel v. Freeze, 52 N. W. 1,101; Keykundall v. Clinton, 3 Kan. 78; Wilson v. Campbell, 75 Kan. 159, 88 Pac. 548; Richardson v. Penny, 6 Okla. 328, 50 Pac. 231; Rice v. West, 10 Okla. 1, 33 Pac. 706 (overruled); Greenameyer v. Coate, 12 Okla. 452, 72 Pac. 377; Schlegel v. Link, 25 Okla. 263, 105 Pac. 652.

Sec. 814. The service of summons.

The summons must be issued and directed, and must state the cause of the complaint, and the time and place of trial, and must be served and returned as in other actions. It may also be served by leaving a copy thereof with some person over twelve years of age, on the premises sought to be recovered, and such service must be at least three days before the day of the trial appointed by the justice."

Sec. 815. Trial if defendant fails to appear.

If the defendant does not appear in accordance with the requisition of the summons, and it shall have been properly served, the justice is required to try the case as though he were present.30

Sec. 816. Continuance-How secured.

No continuance will be granted for a longer period than eight days, unless the defendant applying therefor, give an undertaking to the adverse party, with good and sufficient surety to be approved by the justice, conditioned for the payment of all damages, and double the rent that may accrue, if judgment be rendered against the defendant.31

Sec. 817. The measure of damages for unlawfully detaining property.

The detriment caused by the wrongful occupation of real property, in cases not embraced in Sections (2909, 2915, 2916 and 2917, Snyder, and 2751, 2758 and 2757, Wilson), is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the

29 Snyder, 6,434; Wilson, 5,091; Kansas, 5,019 (1903).

30 Snyder, 6,435; Wilson, 5,092; Kansas, 5,020 (1889); Nussick v. Wigent, 56 N. W. 493.

31 Snyder, 6,436; Wilson, 5,093; Kansas, 5,321 (1889). The application for continuance is addressed to the solemn discretion of the court. Richardson v. Penny, 30

Pac. 231.

commencement of the action, or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession. For wilfully holding over real property by a person who entered upon the same, as guardian or trustee for an infant, or by right of an estate terminable with any life, or lives, after the termination of the trust or particular estate, without the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such holding over. For the failure of tenant to give up property held by him, when he has given notice of his intention to do so, the measure of damages is double the rent which he ought otherwise to pay. For wilfully holding over real property by a tenant after the end of his term, and after notice to quit has been duly given, and demand of possession made, the measure of damages is double the yearly value of the property, for the time withholding, in addition to the compensation for the detriment occasioned thereby. For forcibly ejecting or excluding a person from possession of real property, the measure damages is three times such a sum as would compensate for the detriment caused to him by the act complained of.32

Sec. 818. Trial and judgment by justice.

If the suit be not continued, place of trial changed, or either party demand a jury upon the return day of the summons, the justice must try the cause; and, if, after hearing the evidence, he concludes that the complaint is not true, he is required to enter judgment against the plaintiff for the costs; if he find the complaint true, he is required to enter a

32 Snyder, 2,908, 2,909, 2,915,

Oklahoma City v. Hill, 4 Okla. 521,

112 N. W. (S. D.) 247; Olson v. Hustner, 6 S. D. 354, 61 N. W. 247; Baldwin v. Bohl, 122 N. W. (S. D.) 247.

2,916 and 2,917; Wilson, 2,750, 50 Pac. 242; Wagener v. Lubenow, 2,751, 2,757, 2,758 and 2,759; Dakota Code, 4,610 (1887), 4,609 (1887), 4,608 (1887), 4,601 (1887) and 4,602 (1887); Chisholm Weise, 5 Okla. 217, 47 Pac. 1,086;

V.

general judgment against the defendant and in favor of the plaintiff, for the restitution of the premises, and for costs of suit; if he find the complaint true in part, he is required to render judgment for the restitution of such part only, and the costs may be taxed as the justice deems just and equitable.33

Sec. 819. Trial and verdict by jury.

If a jury be demanded by either party, the proceedings until the impaneling thereof, will be in all respects, as in other cases. The jury must be sworn, or affirmed, to well and truly try and determine whether the complaint of (naming the plaintiff) about to be laid before them, is true, according to the evidence. If the jury find the complaint true, they must render a general verdict of guilty against the defendant; if not true, then the general verdict is not guilty; if true in part, then a verdict setting forth the facts they find true. The justice must enter the verdict upon his docket, and render such judgment in the action as if the facts authorizing the finding of such verdict had been found to be true by himself.34

Sec. 820. Exceptions.

Exceptions to the opinion of the justice; in cases under this head, upon questions of law may be taken by either party whether tried by a jury or otherwise.35

33 Snyder, 6,437; Wilson, 5,094; Kansas, 5,022 (1889); Nebraska, 1,970 (1907); Gallagher v. Connell, 36 N. W. 566; Osborn v. Shotwell, 50 N. W. 164.

34 Snyder, 6,438; Wilson, 5,095; Kansas, 5,023 (1889); Wilson v. Young, 19 N. W. 487.

35 Snyder, 6,439; Wilson, 5,097; Kansas, 5,025 (1889); Nebraska, 1868 (1907); Osborn v. Shotwell, 50 N. W. 164.

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