
    Martin v. Bircher.
    
      (Decided June 23, 1933.)
    
      Mr. M. J. Braucher, for plaintiff in error.
    
      Mr. E. E. Emmons, for defendant in error.
   Lemert, J.

This action was brought by the plaintiff, Almina P. Martin, against the defendant, Fred H. Bircher, in the municipal court of the city of Canton. The plaintiff brought an action in forcible entry and detention on a land contract containing a forfeiture clause to the effect that upon default on the part of the vendee in making payments as stipulated in the contract of sale the vendor without notice could treat the contract as forfeited and be entitled to possession of the premises.

The defendant in error, defendant below, contends that the municipal court of the city of Canton had no jurisdiction of the subject-matter.

The judge of the municipal court, on the hearing of said cause, held that the municipal court of the city of Canton had jurisdiction, and entered judgment in favor of the plaintiff.

The defendant below, Fred H. Bircher, filed a petition in error in the court of common pleas, and said court reversed the court below and held that the municipal court of the city of Canton had no jurisdiction. From the decision of the court of common pleas error is prosecuted in this court.

'The principal question raised, in this case is that justices of the peace have no jurisdiction in forcible entry and detainer cases under contract of sale of real estate containing a forfeiture clause.

Section 1579-668, of the General Code, creating the municipal court of the city of Canton, subsection 1, provides: “In all actions and proceedings of which justices of the peace, or such courts as may succeed justice of the peace courts, have or may be given jurisdiction.” Under this section of the statute the municipal court is granted the same jurisdiction as is granted to justices of the peace.

The legal question therefore presented is whether justices of the peace have jurisdiction of the subject-matter in a suit under a land contract containing a forfeiture clause, and involves the construction of the following statutes:

Section 10224, General Code: “Justices of the peace within and co-extensive with their respective counties shall have jurisdiction and authority: * * * 5. To try the action of forcible entry and detention or the detention only of real property.”

Section 10232, General Code: “Justices shall not have cognizance of any action [subsection 5] on contracts for real estate.” [Subsection 6] “In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in the next preceding section.”

Section 10447, General Code: “In the manner hereinafter directed, any justice, within his proper county, may inquire as well against those who make unlawful and forcible entry into lands and tenements, and detain them as against those who have a lawful and peaceable entry into lands and tenements unlawfully and by force hold them. If upon such inquiry it be found that an unlawful and forcible entry has been made, and that the lands or tenements are held by force, or that after a lawful entry they are held unlawfully, then such justice shall cause- the party complaining to have restitution thereof.”

Section 10449, General Code: “Proceedings under this chapter may be had against tenants holding over their terms * * * in sales of real estate, on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made; in sales by executors, administrators, guardians, and on partition, when any of the parties to the petition were in possession at the commencement of the suit, after such sales, so made on execution or otherwise, have been examined by the proper court, and adjudged legal. Also when the defendant is an occupier of lands or tenements, without color of title, and to which the complainant has the right of possession, or any other case of their unlawful detention.”

Section 10447 of the General Code grants justices of the peace jurisdiction where the entry was unlawful and forcible, and also against those who have a lawful and peaceable entry into lands and tenements and unlawfully and by force hold them.

The complaint in the instant case filed in the municipal court charges that “the said Fred H. Bireher did and has ever since the 8th day of December, 1932, and does still, unlawfully and forcibly detain from the plaintiff possession of the following described premises.” This is the allegation and the evidence that bring the case at bar under the second part of Section 10447, where the entry was lawful and peaceable, but the withholding the possession of the same from the plaintiff unlawful, when “such justice’shall cause the party complaining to have restitution thereof.” So that the remedy of forcible entry and detainer extends to all cases of entry or maintenance of possession by act of force, and the person claiming such remedy is not limited in the force or the effect thereof. Where the complaint states, and the evidence’ proves, that the “defendant doth unlawfully and forcibly and with a strong hand detain,” etc., that is sufficient to give the justice of peace jurisdiction, Yeager v. Wilber, 8 Ohio, 399; Barto v. Abbe, 16 Ohio, 408.

The Supreme Court of Ohio has repeatedly held that the jurisdiction of a justice of the peace is not confined solely to the specific items set forth in Section 10449, and has held that under Section 10447 the justice of the peace has jurisdiction. In other words, the Supreme Court held that Section 10447 was a general statute, and in effect included all of the specific causes set forth in Section 10449 and other causes not enumerated in Section 10449.

In the case of Trustees of Burton Township v. Tuttle, 30 Ohio St., 62, the action was one to recover damages for unlawfully obstructing a public highway, brought before a justice of the peace, the statute granting jurisdiction to justices of the peace in actions of this hind, and in that case the defendant contended that the justice had no jurisdiction, for the reason that the case involved the question of title to real estate, but, as in the forcible entry and detainer cases, the Legislature having granted jurisdiction to justices of the peace, the section of the statute involving the title to real estate had to give way to the special statutes giving jurisdiction.

The Court of Appeals in the case of Felger v. Thompson, 27 Ohio App., 310, 161 N. E., 42, held that the municipal court of the city of Columbus had jurisdiction in an action to enforce a forfeiture clause in a contract for the sale of real estate, and that its judgment thereon was not absolutely void.

Counsel for the defendant, in oral argument, claimed that the act creating the Municipal Court of Columbus was different from the act creating the Municipal Court of Canton. In the Felger case just cited the court refers to the act creating the municipal court of Columbus as follows, “The municipal court shall have and exercise original jurisdiction within the limits of the city of Columbus as follows: (1) In all actions and proceedings of which justices of the peace have or may be given jurisdiction,” and refers to actions in forcible entry and detention of real property.

In State, ex rel. Kennelly, v. Miller, 43 Ohio App., 173, 183 N. E., 41, 12 Ohio Law Abs., 459, Ohio Appeals, Franklin county, decided May 16, 1932, the Municipal Court of the city of Columbus was held to have jurisdiction in a forcible entry and detainer action to render judgment for restitution of property to the vendor under a land contract, where there was an express provision for forfeiture contained in the contract; and that a justice of the peace had no jurisdiction in a forcible detainer action by a vendor against the defaulting purchaser under a contract not providing for vendor’s repossession upon purchaser’s default.

The Court of Appeals in State, ex rel. Kennelly, v. Miller, just cited, held that a justice of the peace under a land contract had jurisdiction where the contract provided for a forfeiture, and the court also expressly held that if the land contract contains no forfeiture clause a justice of the peace has no jurisdiction.

We are of the opinion that in all forcible entry and detainer cases the title to real estate is involved to the extent that the plaintiff must prove that at the time of the filing of the complaint he was entitled to the possession of the premises described in the complaint, and to do that involves the question of title to real estate, but by reason of the express statutes conferring jurisdiction upon justices of the peace to try cases of forcible entry and detainer those statutes modify Section 10232, and justices of the peace have jurisdiction in forcible entry and detainer cases, notwithstanding the fact that they involve the question of title to real estate.

In the case at bar the plaintiff, Mrs. Martin, notified the defendant in writing that the contract was forfeited by reason of the defendant defaulting in his payments, and when the landlord’s complaint was filed in the Municipal Court of Canton the contract had already been forfeited, and the plaintiff below was entitled to possession by reason thereof.

We are of the opinion that the Supreme Court of Ohio many years ago decided the question involved in this ease, and that the property right has become fixed. It therefore becomes the duty of inferior courts to follow the decision of the Supreme Court.

Therefore, after a careful consideration of the instant case, we are of the opinion that the common pleas court committed error in the reversal of the municipal court, and, so finding, the judgment of the common pleas court is hereby reversed, and the judgment and finding of the municipal court are sustained, and said cause is remanded to the municipal court for further proceedings according to law.

Judgment reversed.

Sherick, P. J., and Montgomery, J., concur.  