Julian v. Gallen

This was a proceeding in forcible entry and detainer in which the complaint charges the defendant with entering with force and arms upon his mining claim, and unlawfully holding the same, &c. The proceeding was commenced in the Court of G. Appley, Esq., a Justice of the Peace, and ultimately tried before James Cushing, Esq. The statement of the case upon the record shows that on the trial of the cause, defendant’s counsel moved to dismiss the suit for want of jurisdiction, alleging that the cause was commenced before Esq. Appley, Justice of the Peace for Township No. 1, by him referred to T. W. Barnard, Esq., a Justice of Peace for Township (No.' ), and by said Barnard referred to Charles Ellet, Esq., Justice of Peace for Township No. 1, and by said Ellet referred to W. P. Watkins, Recorder of the City of Marysville, and by the said Watkins to this Court. But it appearing to this Court, that the said Appley and Barnard were material witnesses in the cause, and the Court officially noticing that the said Ellet had resigned his said office as Justice of the Peace, the docket' of the said Ellet then being in the possession of this Court legally transferred ; and further it appearing to this Court, that there was no other nearer Justice of the Peace in and for said county, defendant’s motion was overruled, and defendant excepted.

At the trial the counsel moved to discharge the Ohio Company from the record as defendants, because it did not appear that the Ohio Company and the Perry Wing-dam Company had a common interest in the possession of the ground in dispute, and because it did appear that the Ohio Company was a distinct company from the Wing-dam Company in its organization, and claimed different mining grounds, &c. The Court ruled that the Ohio Company and Perry Wing-dam Company were proper parties, &c., and overruled the. motion, and defendants excepted. The cause was given to the jury, who returned the following verdict, “ We, the jurors, find for the plaintiffs.”

Defendant appealed.