Couldthirst v. Southern Pacific Railroad

BURNETT, J.

The action was brought in a justice court of Lassen County to recover damages for the killing of certain stock belonging to plaintiffs. The claim was based upon the provisions of section 485 of the Civil Code, as amended in 1915 (Stats. 1915, p. 1281), requiring railroads to maintain fences on both sides of the railroad track and making them responsible for injury to stock caused by failure to observe said duty. A demurrer was interposed upon various grounds, including the want of jurisdiction of the subject of the action and of the person of the defendant and the failure to state a cause of action. The demurrer was sustained upon the ground of the want of jurisdiction of the justice court, and the action was thereupon dismissed. Plaintiffs then appealed to the superior court “on questions of both law and fact.” The superior court affirmed the judg

[527]

ment of the lower court sustaining said demurrer. Among the allegations of the amended complaint is the following: “That plaintiffs for several years last past have been and now are the owners of the following described land, situate, lying and being in Lassen County, State of California and more particularly described as follows to wit” (said property being described therein). The ownership of real property was thus put in issue by the complaint, and, if it was necessarily involved in the determination of the cause, it would follow that the justice court had no jurisdiction to try the action. (Sec. 838, Code Civ. Proc.) Indeed, it has been decided that the action brought under said section 485 of the Civil Code does necessarily involve the ownership or possession of real property and, therefore, a justice court has no jurisdiction to try such action.

(Wills

v.

Southern Pac. Co.,

31 Cal. App. 723, [161 Pac. 501];

Holman

v.

Taylor,

31 Cal. 338;

Boyd

v.