74 P. 399 | Or. | 1903
after stating the facts as above, delivered the opinion of the court.
The only serious controversy involved by the record is whether Kelly was authorized to entertain the action attempted to be instituted by Sanders against Adams for forcible entry and detainer. Kelly, without question, acted, not as a justice of the peace, but in his capacity as Recorder for the City of Greenhorn and ex officio justice of the peace. This is manifest from his signature, wheresoever appended —whether to his jurat attached to the complaint, the filings, summons, judgment, or writ of restitution. Wherever he speaks officially by the record it is as Recorder of the City of Greenhorn and ex officio justice of the peace; and there was no attempt on his part to act as justice of the peace, or in any other character or capacity than as indicated. True, he commanded the defendant to appear before him, a justice of the peace; but, when he appeared, Kelly took cognizance aod exercised his functions as recorder and ex officio justice of the peace. So the question resolves itself to this: Whether Kelly was without jurisdiction to entertain the cause of action and render judgment therein upon a complaint filed before him as Recorder for the City of Greenhorn and ex officio justice of the peace, entitled in manner as this was—In the Justice Court for the District of the Town of Greenhorn.
As illustrative of the principle that the designation of the name of the. court is formal in character, Livingston v. Coe, 4 Neb. 379, is singularly apt. The question there came up on a motion to dismiss the attachment in an action in
Based upon these considerations, the judgment of the circuit court must be reversed, and it is so ordered.
Reversed.