Dungan v. Clark

SLOSS, J.

This action was commenced in a justice’s court of Tulare County. The complaint was in two counts, one to recover one hundred and twenty-five dollars together with twenty-five dollars attorney’s fees on a promissory note, and the other to recover $53.99 for electrical power furnished to the defendant at his request.

The defendant filed a verified answer, setting up, as a defense to the action on the note that said note was delivered in consideration of the sale by plaintiff to defendant of a half interest in a pumping plant situated upon a described tract

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of land, and a like interest in a pipe-line extending from said pumping plant to defendant’s premises; that the consideration for the note wholly failed for the reason that plaintiff did not own or possess the half interest which he undertook to convey. The defendant alleges that in consequence he has never been able to obtain from said pumping plant any water for the irrigation of his land.

Upon the coming in of this answer, the justice, finding that the question of title and possession of real property was involved, certified the ■ pleadings to the clerk of the superior court of Tulare County (Code Civ. Proc., sec. 838).

The case was tried by the superior court, which, after making findings to the effect that all the allegations of the complaint were true and that none of the allegations or denials of the answer were true (except that the consideration of the note was the sale of a. half interest in the pumping plant and pipe-line and that plaintiff had conveyed such interest to defendant), entered judgment in favor of plaintiff as prayed.

The defendant appeals from the judgment, and from subsequent orders denying motions to vacate the judgment and to quash an execution.

On all three appeals the appellant presents the same point, which is that the action was one within the exclusive jurisdiction of the justice’s court, and that the superior court was without jurisdiction to hear and determine it. The suit being one “on an action arising on contract to recover money only,” in which “the sum claimed, exclusive of interest, does not amount to $300,” the. complaint was properly filed in the justice’s court (Code Civ. Proc., sec. 112). The appellant’s argument is that the answer fails to show that the title or possession of real property was involved in such manner as to justify a transfer of jurisdiction to the superior court.