King v. Kutner-Goldstein Co.

GAROUTTE, J.

This is an action brought to recover damages for the trespass of sheep. It was originally brought in the justice’s court, where a judgment was rendered against defendant. Thereupon an appeal was taken to the superior court, upon questions, of law alone, and the judgment affirmed. The present appeal is prosecuted from the judgment rendered in the superior court. The point is here made that the judgment of the justice’s court was void, the cause of action being

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without the jurisdiction of that court; and the judgment of that court being void, it is contended that the judgment of the superior court upon appeal, upon questions of law alone, was also void.

The facts material to a consideration of this question are these: Plaintiff paid five hundred dollars to defendant as a part of the purchase price of a certain tract of land, the balance to be paid thereafter, if title proved good. Plaintiff being satisfied with the title, paid the balance of the purchase price and received his deed. He then brought the present action for damages for trespass upon the land, occurring between the date of the first payment and the delivery of the deed, claiming by his complaint that he was the owner and entitled to the possession during that period. Defendant filed an unverified answer, denying all the allegations of the complaint, and the case went to trial upon the facts. The following stipulation of the respective attorneys appears in the amended statement upon appeal from the justice’s court to the superior court: ‘1 Witnesses were sworn on both sides, and evidence was adduced which clearly showed that the right of possession and title to said land mentioned in plaintiff’s complaint was involved.”

In view of the foregoing recital contained in the statement upon appeal to the superior court, it is very evident that the justice’s court had no jurisdiction to try the action. When the facts contained in the foregoing recital were adduced before the justice of the peace, he should have stopped the proceedings forthwith. It is contended upon the part of respondent that the answer of the defendant not being verified, he thereby waived any and all objections to the jurisdiction of the court over the subject-matter of the action. In answer to this proposition, it is sufficient to say that neither a party nor both parties can vest the court with a constitutional jurisdiction to which it is otherwise a stranger. If the failure of the defendant to verify his answer in this particular case vested the justice’s court with jurisdiction to try the title and the right of possession to this particular tract of land, then, by the same character of proceedings, a justice’s court could be vested with jurisdiction to try an action of ejectment or any other action involving the title or right of. possession to real estate. In support of his contention in this regard, respondent relies