
    [No. 4401.
    Decided May 2, 1903.]
    William Cutler et ux., Appellants, v. Co-operative Brotherhood et al., Respondents.
    
    FORCIBLE ENTRY AND DETAINER-ACTION BY TENANT-EXPIRATION OE LEASE-EEEECT.
    Although a lease may have expired prior to the trial of an action by the tenant for forcible entry, the tenant may still recover in the samé action damages flowing from the forcible entry and detainer, even if he no longer has a right to a precedent judgment for restitution.
    Appeal from Superior Court, Kitsap County. — Hon. John C. Denney, Judge.
    Reversed.
    
      J. B. Yakey and Jesse Thomas, for appellants.
    
      Samuel S. Carlisle and Charles E. Patterson, for respondents.
   Per Curiam.

— On the 26th day of April, 1900, while appellants were in possession under a lease of a certain tract of land in Kitsap county, the respondents forcibly entered thereon, and took possession of a certain portion thereof, tearing down the boundary fence inclosing the field, and moving the same to where they claimed the line was properly located, thereby exposing the crops of the appellants to the ravages of outside stock by which it was destroyed; whereupon they commenced an action in ejectment against the respondents. Before the action was tried, appellants’ lease had expired, and the lessor had brought an action in ejectment and obtained a judgment of ejectment against tbe respondents. The appellants ashed and obtained leave of the court to change their complaint from an action in ejectment to that of forcible entry. It does not appear that any objection was raised to this motion. The defendants answered, and the case went to trial. Upon the completion of appellants’ testimony, the respondents, by counsel, challenged the sufficiency of the evidence introduced on behalf of the plaintiffs, and moved the court to instruct the jury to return a verdict for defendants, or for the court to dismiss the case on the ground that no judgment of restitution could be entered, and consequently that there could be no claim maintained for damages. The court sustained the motion, and the case was dismissed. Judgment for costs was entered, and this appeal followed. So that the question presented is, can a tenant, whose lease has expired before the trial of an action which has been brought for forcible entry, recover for damages flowing from the forcible entry and detainer, where, the landlord has recovered judgment for the possession of a portion of the leased land which was taken away from the tenant during the lease.

It is contended by the respondents that, the action for forcible entry being a special action, a judgment for restitution must precede a judgment for damages. But all statutory actions are, in a sense, special actions, and we think it would be violative of the spirit of the Code to dismiss a plaintiff out of court, burden him with the costs of his action, and compel him to commence a separate action for damages, when the damages had been sustained before the commencement of the action. . It is true that probably no writ of restitution could be adjudged under the testimony adduced in this ease, but it is not uncommon under the practice where one cause of action fails, to allow the case to proceed to judgment on another cause of action. It matters not whether the'right invoked had never really existed, or whether it had ceased hy some subsequent proceeding of happening. In this case the same issues would have to be tried in a direct action for damages to determine the question of whether the respondents were responsible to appellants for damages, as in an action for forcible entry and detainer, for the damages could be awarded only on the theory that forcible entry and detainer had been committed by the defendants. It would be trifling with the rights of the plaintiffs to dismiss their cause, and compel them to bring another action involving exactly the same issues, for the purpose of determining the amount of their damages. The cases cited by appellants, viz: King v. Lawson, 98 Mass. 309, Townsend v. VanAspen, 38 Ala. 572 and Hyde v. Fraher, 25 Mo. App. 414, we think sustain appellants’ contention, although it is claimed, by the respondents that they are not in point.

We think the court erred in dismissing the case,, and that it should have proceeded to judgment on the question of damages. The other errors alleged are incidental, and, as they may not occur again at a subsequent trial, we will not notice them here.

The judgment is reversed, and a new trial granted.  