
    Jonathan Kelley v. Archibald Hunter.
    A writ of error lies only to a final judgment of tho court below.
    A purchaser under a tax sale can not recover possession by proceeding under the statute for forcible entry and detainer against one having a deed in fee for the land.
    This is a writ of Error from Carroll county.
    Kelley instituted proceedings under the act for forcible entry and detainer, to obtain possession of premises sold, in Hunter’s name, for taxes. Upon the trial he recovered upon the strength of the auditor’s deed.
    The proceedings were afterwards reversed, with costs, on certiorari, by the court of Common pleas, that court ordering “ that this cause be continued for trial and final judgment.” Thereupon this writ of error was brought.
    During the present term in bank, a motion was filed by the defendant, in error, to strike the cause from the docket, on the ground that no final judgment had been rendered in the Common Pleas ■
    Atherton and Chapman, for plaintiff in error, insisted—
    First: That the remedy by forcible detainer is not limited by the statute to the three classes of cases supposed in the said assignment of errors.
    ^Second: That the record shows a case clearly within the let- [217 ter and spirit of the act to regulate the action of forcible entry and detainer, and the judgment of the justices was, therefore, correct.
    Previous to January. 1823, our statute, on this subject, did not contain any reference to the three classes of cases enumerated in the 19th section of the present act, but provided a remedy “ as well against those who make unlawful and forcible entry into lands and tenements, and with force and strong hand detain the same, as against those who, having a lawful and peaceable entry into lands and tenements, unlawfully and with force hold the same.” This continued to form the description of the wrong which the statute was enacted to remedy, through all the changes of the law, from 1795 until 1823, when an amendatory act was passed, extending the remedy under the statute to the three classes of cases above mentioned, and which are embraced in the 19th section of the act now in force. The manner in which this section came to be incorporated in the forcible entry and detainer act should serve, in some measure, to show that it was adopted rather by way of extending, than of limiting the remedy under that act. In accordance with this conclusion is the decision in Yager v. Wilber, 8 Ohio, 398, which must settle this point, while it remains unreversed.
    The English statutes, on this subject, are penal, and the decisions under them are necessarily more strict and rigid than if the construction had been sought for under a civil proceeding, where the policy of the law is to extend a remedy, rather than limit it. Under those statutes, it has been decided, “ If a man holds the possession by force, though his entry was peaceable, the justices may remove him, if he "had no right to enter.” Yelv. 99 ; Dalt. 301; Cro, Jac. 151; Sid. 97, 414.
    Eorcible detainer is where a man who enters peaceably afterwards detains his possession by force. Hawk. P. C. 139.
    
      So, if a lessee at will detains by force, after the will is determined. 4 Com. Dig. 208. Or a mortgagor, after a mortgage is forfeited. Ibid.; Dalt. 126.
    *It appears, by the complainant, that the plaintiff claimed the premises under a conveyance from the county auditor, on a sale for taxes. These sales are analogous to sheriff’s sales on execution, on which it has been held that the defendant to the judgment, after such a sale, becomes quasi tenant at will to the purchaser. 1 Johns, Cases, 153 ; 4 Cowen, 576 ; 3 Mass. 128.
    The complainant shows a detainer by force, unlawfully and with a strong hand. This complaint the jury found to be true, and the defendant guilty, upon a hearing of the parties. The case is clearly, then, within the letter and spirit of the law, both in fact, and as made upon the record. The judgment of the justices, of restitution, was well founded upon that verdict, and should, by reversal of the judgment in the Common Pleas, be affirmed, and restitution awarded.
    But the defendant moves to dismiss this cause, and strike it from the docket, “because the record shows that the judgment in the court of Common Pleas (sought to be reversed here,) was not final, and that said cause is still pending in the court of Common Pleas.”
    As to this ground, we remark, first, that this objection is now, here in bank, first started. It did not appear, nor was it made, on the circuit. Second : The judgment of reversal, in the Common Pleas, was final and definitive, by which the merits of the cause were settled and determined. True, it may not be technically a final judgment, or the proceedings capable of being enrolled, because the court, for some cause not stated in the record, retained it; but there is a judgment of reversal, and for costs, on a record presenting all the merits of the case. This is not a case of mere interlocutory judgment, in which the merits are not touched. Clason v. Shotwell, 12 Johns. 31 ; Brooks v. Burt, 17 Johns. 484.
    The defendant cites, in support of this motion, Reed v. De Wolf, Wright, 418, which was a caso of trespass on real property, in which the reversal by the Common Pleas settled no merits, but was merely preparatory to an adjudication on the merits. The reversal by the 219] Common Pleas, in the ease *cited, was merely interlocutory, and, according to the eases above cited, from Johnson, not final or definitive, or one by which the merits of the cause could be settled or determined.
    As to the first and second grounds set forth in the motion to dismiss, they are, we conceive, obviated, by placing on file here the certificate of the journal entry sending the cause to bank ; and we respectfully commend the counsel, who made the motion, to the tender mercies of the court, for having moved in this manner, when he knew that the cause was so reserved, and that the objection was caused by mistake of the clerk, and without any fault of plaintiff or his counsel.
    E. R. Eckley, for defendant.
    The reporter was furnished with no argument for the defendant in error.
   Birchard, Judge.

This is a writ of error to the court of Common Pleas of Carroll county. Several errors are assigned, which it is not necessary to notice, inasmuch as the transcript shows that the proceeding is still pending in the court below. The case was in the court of Common Pleas by certiorari to two justices of the peace, whose judgment, in a proceeding under the statute, providing for actions of forcible detainer, were reversed, and the cause set down for hearing. The defendant moves to strike the ease from the docket, on the ground that there is no final judgment. Under the authority of Herf & Co. v. Shulze and others, 10 Ohio, 267; and Reed v. De Wolf, Wright, 418, this motion must prevail. Our statute has received a construction in these two cases which has been uniformly followed; and, were we in doubt as to the correctness of those decisions, we should hesitate to disturb them, and unsettle the law on a mere matter of practice.

But were this case before us on a writ of error to a final judgment, the question sought to be made would be open to examination, and we apprehend there would be no difficulty in sustaining the position taken by the court below.

*The magistrates’ proceedings were under the “act to regulate [220 the action for forcible entry and detainer,” and we do not believe that this statute makes adequate' provisions to enable purchasers at tax sales to oust the occupant claiming title adverse to, and senior to, the tax title.

Cause stricken from the docket.  