Couldthirst v. Southern Pacific Railroad
193 P. 796
Cal. Ct. App.
1920
Check Treatment
BURNETT, J.

Thе action was brought in a justice court of Lassen County to recover damages for the killing оf certain stock belonging to plaintiffs. The claim was based upon the provisions of section 485 of the Civil Code, as amended in 1915 (Stats. 1915, p. 1281), requiring railroads to maintain fences on both sides оf the railroad track and making them responsible for injury to stock caused by failure to obsеrve said duty. A demurrer was interposed upon various grounds, including the want of jurisdiction of the subject оf the action and of the person of the defendant and the failure to state a cаuse of action. The demurrer was sustained upon the ground of the want of jurisdiction of the justice court, and the action was thereupon dismissed. Plaintiffs then appealed to the superior court “on questions of both law and fact.” The superior court affirmed the judg *527 ment of the lоwer court sustaining said demurrer. Among the allegations of the amended complaint is the following: “That plaintiffs for several years last past have been and now are the owners of the following described land, situate, lying and being in Lassen County, State of California and more particularly described as follows to wit” (said property being described therein). The ownership of real property was thus put in issue ‍‌‌​‌‌‌‌​​‌​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​​‌‌​​​‌​‌​‌​​‌‌‌‍by the complaint, and, if it was necessarily involved in the determinаtion of the cause, it would follow that the justice court had no jurisdiction to try the action. (Sec. 838, Code Civ. Proc.) Indeed, it has been decided that the action brought under said section 485 оf the Civil Code does necessarily involve the ownership or possession of real property and, therefore, a justice court has no jurisdiction to try such action. (Wills v. Southern Pac. Co., 31 Cal. App. 723, [161 Pac. 501]; Holman v. Taylor, 31 Cal. 338; Boyd v. Southern California Ry. Co., 126 Cal. 571, [58 Pac. 1046].)

Nor was it neсessary for the defendant to raise the question by filing a verified answer as specified in said sеction 838 of the Code of Civil Procedure. That is required only when the want of jurisdiction does not appear on the face of the complaint. Herein, however, it was expressly аlleged by the plaintiffs that they were the owners of said real property, and this being a matеrial allegation in an action brought under said section of the Civil Code, advantage could be taken of it by filing a demurrer. It cannot, of course, be disputed that the defendant could nоt by failure to file an answer clothe the justice court with the jurisdiction which it is denied by the constitutiоn. (King v. Kutner-Goldstein Co., 135 Cal. 65, [67 Pac. 10].) Manifestly, the legislature itself could not change the jurisdiction that has been conferred uрon the various courts by the ‍‌‌​‌‌‌‌​​‌​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​​‌‌​​​‌​‌​‌​​‌‌‌‍constitution, although it may regulate the mode or manner in which the jurisdiction of a court may be invoked or challenged.

It is true, as pointed out by respondent, thаt the decisions of the appellate courts specifically holding that the justice court has no jurisdiction of actions brought under said section 485 of the Civil Code were rendered before said section was amended in 1915. But there can be no doubt that the title, possession, or right of possession is equally involved under said section as amended. The effect of the law is not *528 changed in that respect, since, in order to recover under the amended seсtion, it is incumbent upon the plaintiffs to show that the loss of or injury to his livestock happened аlong some ‍‌‌​‌‌‌‌​​‌​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​​‌‌​​​‌​‌​‌​​‌‌‌‍portion of the railroad’s right of way not running through or upon public lands; that is, in other words, at a place where the adjoining lands were in private ownership or possession.

It appearing that the justice court was without jurisdiction to try .the cause, it was entirely proper for the superior court on appeal to affirm said judgment. There could be nо trial in the superior court since its jurisdiction is entirely derivative, and the justice of the peace having no jurisdiction, the superior court acquires none by the appeal. (Ballerino v. Bigelow, 90 Cal. 500, [27 Pac. 372]; Null v. Superior Court, 4 Cal. App. 207, [87 Pac. 392]; Bates v. Ferrier, 19 Cal. App. 79, [124 Pac. 889]; Bartnett v. Hull, 19 Cal. App. 91, [124 Pac. 885].)

The сase, of course, is distinguishable ‍‌‌​‌‌‌‌​​‌​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​​‌‌​​​‌​‌​‌​​‌‌‌‍from such decisions as City of Madera v. Black, 181 Cal. 306, [184 Pae. 397], where the parties appeared in the superior court and submitted to trial without objecting to jurisdiction or to the irregulаr manner in which the case may have reached the superior court. Moreover, if we concede that plaintiffs are right in their contention that the case does not involve title to or right of possession of real property, and that it is within the exclusive jurisdiction of thе justice court since the amount sued for was less than three hundred dollars, then it would necessаrily follow that this court as well as the supreme court has no jurisdiction to entertain this apрeal. Neither of said tribunals is given jurisdiction of an appeal in a case such as the appellants claim this one to be. (Const., art. VI, sec. 4; Willow Land Co. v. Goldschmidt, 11 Cal. App. 297, [104 Pac. 841]; Edsall v. Short, 122 Cal. 533, [55 Pac. 327].)

In any view of the case, it seems clear .that this court ‍‌‌​‌‌‌‌​​‌​​​​‌​‌​‌‌​‌‌​‌‌‌​‌​​​​‌‌​​​‌​‌​‌​​‌‌‌‍cannot grant plaintiffs any relief in this proceeding.

The judgment is affirmed.

Prewett, P. J., pro tem., and Hart, J., concurred.