8 Ind. 147 | Ind. | 1856
The complaint alleges that Dixon, on the 14th day of November, 1854, entered at the Vincennes land district, certain lands, describing them, and received therefor a certificate of purchase in Ms own name; that Hill, the defendant, was, at the time of the entry, and ever since hath been, in the possession of about forty acres of said lands, and though duly notified of the entry and certificate thereof, hath, since its date, greatly injured said forty acres, &e., — to the plaintiff’s damage 150 dollars. The defendant demurred to the complaint, but his demurrer was overruled; and thereupon he answered by general denial, &c. The cause was submitted to a jury.
During the trial the plaintiff proved. a survey of the lands described in the complaint, whereby it appeared that Hill was in the possession of and cultivating some fifteen acres included in the survey. And then he proposed to introduce, as evidence in the cause, his land-office certificate; to the introduction of which an objection was raised and sustained. The cause was dismissed on the ground that the -title to real estate came in issue.
How stand the pleadings in.this case? The plaintiff, in his complaint, sets up title to the premises, and refers specifically to the land-office certificate under which he claims. All that, however, is denied by the answer. It seems to follow that his title was directly in issue, because, in order to recover damages for the injury done to the land, he was bound to establish the validity of his certificate.
Against the decision of the Common Pleas, the appellant refers to Wolcott v. Wigton, 7 Ind. R. 74. But in principle, there is an evident distinction between that case and the one at bar. The case cited was a complaint for partition. In such cases the statute expressly confers jurisdiction on the Common Pleas. And the jurisdiction thus conferred in suits for partition, necessarily includes the power to settle the title to real estate,
Upon the dismissal of the suit, the Court rendered a judgment against the plaintiff" for costs. In rleation to this judgment counsel argued thus: “If there was no jurisdiction, there could be no judgment for costs; for the power to adjudge at all (except on the question of jurisdiction), depends on the question of jurisdiction. A judgment for costs necessarily, supposes jurisdiction in the Court,, both oven the parties and the subject-matter.”- This reasoning, though ingenious, is not conclusive. The Court had jurisdiction of the parties. The parties had the right to appear — the plaintiff to insist upon his right to have the action maintained — the defendant to urge his motion to dismiss; and the Court must adjudge the matter. Upon the result of such adjudication it seems to be'reasonable and proper that the prevailing party recover a judgment for his costs. There are, however, various authorities which directly sustain the doctrine that in all cases in which an action is dismissed for want of jurisdiction in the court in which it is commenced, the defendant is entitled to a judgment for costs. Jordan v. Dennis, 7 Met. 591. — Hunt v. The Inhabitants, &c., 8 id. 343. — Osgood v. Thurston, 23 Pick. 110. — Balfour v. Mitchell, 12 S. and M. 629. — Reynolds v. Plummer, 1 Appleton, 22. We are inclined to follow these cases.
The judgment is affirmed with costs.