1 Abb. Ct. App. 177 | NY | 1866
It lies with the party alleging error affirmatively to show it. If any presumptions are made they are always in. affirmance of a judgment.
In the case at bar it nowhere appears that the title of either party in the justice’s court was disputed or denied; in such case, if evidence be given of title, it does not oust the justice of jurisdiction. Koon v. Mazuzan, 6 Hill, 44; Adams v. Beach, Id. 271.
Had it been disputed, the party insisting upon the invalidity of the judgment should have proved that fact. The justice testified that he decided where the stream ought to run according to the evidence. If there had been but one witness, and he sworn for the-plaintiff in that suit (defendant in this) and testifying without objection, this testimony of the justice would have been strictly true. It is no answer to say that the
[After stating the facts above.] — But two questions are presented for consideration, and the first is as to the conclusiveness of the judgment before the justice upon the rights of the parties. The question raised and litigated in both actions were identical, and based upon the right of the defendant to build and maintain the dams. The litigation in each action was between the same parties; and the judgment of a court having jurisdiction of the parties and of the subject matter of the action is conclusive, until reversed, upon the parties thereto and their privies. Freer v. Stotenbur;
A judgment of a justice of the peace, in a case of which he has jurisdiction, is, while unreversed, for every purpose, as conclusive, between the parties, as that of the highest court of record in the State. Mitchell v. Hawley, 4 Den. 414.
Although a mere revocable license would be enough to establish a defense, still they might have set up a grant, or a title by prescription, to a right to divert the waters of the stream, if such was the nature of their claim. This would have been an easement burdening the plaintiff’s premises for the benefit of the lands, for the advantage of which the diversion was made. If Such a grant or prescription had been set up it would have entitled the plaintiff to costs under the provisions of the Revised Statutes. In the action in the justice’s court it was decided where the stream ought to run, and that decision was binding and conclusive upon the defendant until reversed. He cannot now set up in this action that the stream ought to run in a different channel from that established in that action as its proper and legitimate channel.
But by section 59 of the Code of Procedure, if it should appear on the trial, from the plaintiff’s own showing, that the title to real property did come in question, yet the justice is not required to dismiss the action, unless such title shall be disputed by the defendant. The. defendant has not shown affirmatively that the title to land did come in question on that trial. The plaintiff, in his complaint before the justice, alleged a trespass upon his close, but the defendant admitted in substance that the premises were the close of the plaintiff, but claimed the right to enter upon the same for the purpose of changing the course of the stream. The defendant did not, therefore, in his answer, set forth any matter showing that title to real property would come in question. Ko undertaking
In Koon v. Mazuzan, 6 Hill, 44, it was held, that although it appeared on a trial in a justice’s court, from the plaintiff’s own showing, that the title to lands is in question, and the justice improperly refused to dismiss the cause, his judgment will not be void for want of jurisdiction, but only voidable for error. It was also held that the justice may properly proceed and render judgment, notwithstanding evidence of title to lands be given by the plaintiff, if the defendants do not expressly dispute such title, nor move to have the cause dismissed. Coweít, J., in the opinion of the court, says: “ But it is plain that the statute does not mean to deprive the justice of jurisdiction absolutely. It leaves him to judge whether the title be in question or not, and if he mistake, the judgment is voidable for error, not void for want of jurisdiction. It follows, I think, that if the party will entitle himself to a dismissal, he must call the justice’s attention specifically to the objection by at least disputing the title claimed. If he omit this, it is a waiver and a virtual assent that the evidence of title shall be received; and that the title as made out shall pass without being drawn into dispute.” So, also, Adams v. Beach, 6 Hill, 271.
In Browne v. Scofield, 8 Barb. 239, the court, by T. A. JoHirsotf, Justice, said, referring to Koon v. Mazuzan, supra, that it was there held that a party to entitle himself to a dis
In Adams v. Rivers, 11 Barb. 390, it was held that when a complaint in a justice’s court is so drawn that the defendant can set up title in Eis answer, and, on giving the requisite security, oust the justice of his jurisdiction, but omits to set up title, the justice retains his jurisdiction, and the defendant will be precluded from drawing it in question on the trial. Willard, J., in the opinion of the court, says: “ The complaint was so drawn that the defendant could have set forth in his answer any matter showing that title would come in ques-' tion, and thus, by giving the requisite security, oust the justice of jurisdiction. He failed to do so, and therefore the justice retained jurisdiction of the cause, and the defendant was precluded in his defense from drawing the title in question..... If the title to land was brought in question at all, it appeared on the face of the complaint. The defendant, having failed to take that objection at the joining of the issue and to give the required, security^ was precluded from raising it as a defense on the trial. Section 59 is applicable only to those cases when the defendant was not apprised by the nature of the action that title would be in question, and where it first appears by the plaintiff’s own showing on1 the trial, that it is in question. In such case, if the defendant disputes the title, the justice is required to dismiss the action.” ‘
These observations are applicable, with force, to the case at bar, and effectually dispose of the defendant’s objection that
It follows that the justice’s judgment was legal and valid, and the rights determined by it could not again be opened for contest, and the judgment appealed from must be affirmed, with costs.
All the judges concurred, except Mobgah, J,, who dissented. ,,
Judgment affirmed, with costs.
Reported, in this series.