60 Neb. 423 | Neb. | 1900
This was an action of forcible detainer instituted before a justice of the peace, where the plaintiffs obtained a judgment of restitution for the premises in controversy. The defendants gave a bond for an appeal, and subsequently filed a transcript of the proceedings in the district court and the cause was docketed therein as on appeal. Both parties appeared in said court, and the trial had therein resulted in another judgment for the plaintiffs for restitution of the premises and costs of suit. The defendants having prosecuted a petition in error to this court, plaintiffs have filed a motion to dismiss for want of jurisdiction, or affirm the judgment of the district court, or vacate the supersedeas. The present submission is upon said motion.
Chapter 10, title 30, of the Code of Civil Procedure relates to actions for the forcible entry and detention, or the forcible detention only, of real property. This chapter in 1881 comprised sections 1019 to 1032, both inclusive, of said Code. Section 1030 as then existing declared that “exceptions to the opinion of the justice, in cases under this chapter, upon questions of law and evidence may be taken by either party, whether tried by a jury or otherwise.” The legislature of 1883 (Session Laws, 1883, ch. 82) passed the following act, which received the approval of the governor:
“An act to amend section 1030 of the Code of Civil Procedure.
“Be it enacted by the Legislature of the State of Nebraska:
“Section 1. Exceptions to the opinion of the justice in cases under this chapter upon questions of law and evidence may be taken by either party, whether tried by a jury or otherwise; or either party may appeal from the judgment rendered by such justice by giving bond, with two responsible sureties, to be approved by the justice, conditioned: If the plaintiff appeals to satisfy the final judgment and costs; if the defendant appeals to sat
“Sec. 2. That section 1030 Civil Code, as heretofore existing, be and the same is hereby repealed.”
It is under and by virtue of the foregoing amendatory act that the right to appeal in actions like the present one is claimed; and if this legislation is invalid, the right of the defendants to prosecute an appeal to the district court from the judgment of restitution entered by the justice of the peace did not exist. The title of the amendatory act was “An act to amend section. 1030 of the Code of Civil Procedure.” Under said title no new legislation was allowed which was not germane to the original section 1030. This is the established doctrine of this court. City of Tecumsch v. Phillips, 5 Nebr., 305; Burlington & M. R.R. Co. v.Saunders County, 9 Nebr., 507; State v. Lancaster County, 17 Nebr., 85; Miller v. Hurford, 11 Nebr., 377; State v. Pierce County, 10 Nebr., 476; Trumble v. Trumble, 37 Nebr., 340; Stale v. Tibbets, 52 Nebr., 228; Horkey v. Kendall, 53 Nebr., 522; Webstar v. City of Hastings, 59 Nebr., 563.
It is plain that the amendatory matter contained in the said act of 1883 is foreign, and not germane, to the subject-matter of the original section 1030 of the Code of Civil Procedure. The scope of said original section was to afford litigants in actions like the one with which we are dealings, the right to take “exceptions to the opinion of the justice * * * upon questions of law and evidence,” that his decision might be reviewed by proceeding in error. Said original section contains no provision whatever relating to appeals, while the amendatory legislation has attempted to engraft upon the original section 1030 the right to appeal from judgments of justices of the peace in actions for the forcible entry and detention and forcible detention alone of real property. The amendment was foreign to the original section, and the scope of the amendment was not embraced in the title, “An act
This brings us to a consideration of another question, which, on the suggestion of the court, has been elaborately briefed by counsel, and that is whether the district courts have original jurisdiction of actions of forcible detainer. Jurisdiction of such actions is conferred upon justices of the peace (Code of Civil Procedure, secs. 905, 1019), and said Code contains no provision conferring original jurisdiction upon the several district courts of the state, to try and determine actions of forcible entry and detainer or forcible detainer only. Section 9, article 6, of the constitution provides that “The district courts shall have both chancery and common law jurisdiction, and such other jurisdiction as the legislature may provide,” etc.
It has been held, construing this provision, that where the legislature has conferred a right and provided no special tribunal for its enforcement, the district court has jurisdiction. Foxworthy v. Lincoln & F. R. Co., 13 Nebr., 398. The actions of forcible entry and detainer and forcible detention only are statutory, and the legislature has designated the justices courts as the tribunals in which said actions may be originally brought. These actions are purely statutory and the legislature has pre
The present action of forcible detainer is a creation of the legislature, and did not exist at common law. As is well stated in Harrow v. Baker, 2 G. Greene [la.], 201, 203: “In England, proceedings of this kind are either by indictment, or by complaint before a justice of the peace, in the nature of a criminal prosecution. That, which by their law is made an offense punishable by fine and imprisonment, is by ours a civil action to obtain possession.”
In Murry v. Burris, 6 Dak., 170,. 175, Tripp, C. J., observed: “Statutes of forcible entry and detainer are of very ancient origin; they date far back into the fourteenth century; they succeeded the wager of battle; they were criminal in character, and were designed to prevent redress of private wrongs by means calculated to disturb the peace and good order of society, in the use of force and violence of a nature to inspire terror and incite personal conflict. These statutes were highly penal in character, and were enforced by indictment of the grand jury or by complaint before a magistrate, and terminated,
We are forced to the conclusion that the constitution conferred no original jurisdiction upon the district court to try and determine actions of forcible detainer, and that the jurisdiction of said courts as to such actions is by error proceedings alone. The fact that the plaintiff appeared in the district court and tried the cause without raising the question of jurisdiction is immaterial, since consent of parties can not confer upon a court jurisdiction of the subject-matter. The judgment of the district court from which this error proceeding has been prosecuted is coram non judice. Such being the case, the motion to affirm must be denied. The supersedeas is of no validity and hence need not be vacated, as it does not stand in the way of the enforcement of any rights of the plaintiffs.
The motion to dismiss the error proceeding for want of jurisdiction must also be denied. It is true where jurisdiction of the subject-matter is lacking an appellate court acquires none by appeal, for the obvious reason that an appeal removes to the appellate court the same cause. But the judgment of the district court is not here on appeal, but by error proceeding. A new action has been commenced in this court to review the judgment of the district court. The supreme court has original jurisdiction to hear and determine the same, notwithstanding the district court was without jurisdiction of the subject-
Motion denied.