Pollock v. Cummings

Rhodes, J., delivered the opinion of the Court „ Certiorari to the County Court to bring up for review the record in an action tried and determined in that Court on appeal from a Justice of the Peace. The principal question is whether the Justice of the Peace had jurisdiction of the [684]action. The action is quite anomalous in character. The plaintiff alleges that he is in possession of certain real estate —but does not describe the real estate—and that he had the same in cultivation, raising grain and other produce thereon at certain specified times; and, after describing the injury to his grain, occasioned by the defendant’s horses, etc., he alleges that, by reason of such wrongful act of the defendant, he has sustained damage to the amount of $100, “which amount defendant became bound and undertook and promised to pay plaintiff. ” This .is the averment of a contract, the matters stated in the complaint before the clause above cited constituting the consideration of the defendant’s promise. The Justice of the Peace had jurisdiction of an action on an obligation, contract or agreement for the payment of the sum of money mentioned.

But, rejecting as surplusage the averment of the defendant’s promise, and treating the action as an action of trespass, it is still within the jurisdiction of a Justice of the Peace. In Holman v. Taylor (31 Cal. 338), the title of the respective parties to certain parcels of real estate was in issue, and in ascertaining-the meaning of the clause of the Constitution “all cases at law which involve the title or possession of real property,” the subject of possession was considered, but only by way of argument, and for the purpose of illustration; and in the discussion our language was not in all respects sufficiently guarded and definite. To constitute a case which involves the possession of real property, it is not enough that the possession is a fact in controversy, or incidentally in question, or that the fact of possession is in issue; but the right of possession must be involved in the action. The paraphrase of the clause of the Constitution, given in Holman v. Taylor, would be more accurate, and would more fully express our idea of the meaning of that clause, if given in this language : “Cases at law in which the title or right of possession of real property is a material fact in the case, upon which the plaintiff relies for a recovery, or the defendant for a defense. ” The allegation of tho right of possession is quite different from that of possession in fact, which may constitute merely tho basis of some right or claim [685]