Boyd v. Southern California Ry. Co.

TEMPLE, J.

—This action was brought in Riverside county to recover one hundred dollars damages for killing a colt. Objection is made to the jurisdiction of this court, and it is stated in the briefs on both sides that the ease was originally brought in a justice’s court, was there tried, and after judgment in favor -of plaintiff was appealed to the superior court upon both law and fact. The action was tried in the superior court, and plaintiff recovered judgment for the full amount of his claim, and the defendant appeals to this court from the judgment and from an order refusing a new trial. ,

All that the record shows in regard to the justice court is that the complaint is entitled “In the justice’s court of Riverside township, county of Riverside,” and is indorsed, “Filed July 1.7, 1897, James Mills, Justice of the Peace,” under which last is “Filed, Sep. 18, 1897, A. J. Condee, Clerk, by J. W. Roberts, Deputy.”

The answer is entitled in the superior court. It may well he doubtecl whether from this record this court would be justified

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in saying that the case had ever been in the justice court, but certainly we cannot conclude that it was tried in the justice court without raising a question of title to the land by a verified answer, or that the case went to the superior court by ap'peal upon questions of law and fact. The main contention upon this matter is, that the defendant did not raise any issue as to title in the justice court, and that on appeal the superior court has no further jurisdiction than the justice had. That as to such case its jurisdiction is purely appellate, and it can only retry what was tried in the lower court. But the answer is an amended answer filed in the superior court, and, if we assume from the title to the complaint that the case was once in the justice court, we cannot say what the issues there were, nor how they were made. Briefs on both sides assume such facts, but we are not called upon to decide moot questions because attorneys are pleased to make them.

The amount sued for was less than three hundred dollars, hut the first count of the complaint is based upon the liability of the defendant under section 485 of the Civil Code, which requires railroad corporations to maintain good and sufficient fences on both sides of their track, and provides that in case they do not, and their engine or cars should maim or kill any cattle on their “line of road which passes through or along the property of the owner thereof, they must pay to the owner of such" cattle or other domestic animals a fair market price for the same.” In this count of the complaint plaintiff avers title in himself to a described tract of land, that it adjoins defendant’s railroad, the insufficiency of the fence, and that without his fault his colt strayed upon the railroad and was killed by defendant’s locomotive and cars. No negligence other than a neglect to keep the fence in repair is charged.