Fry v. Dunn

78 P. 814 | Kan. | 1904

The opinion of the court was delivered by

Smith, J.:

The city court of Wichita is given the same jurisdiction, with an increase as to amount, that is conferred by law on justices of the peace. (Laws 1899, ch. 130.) By express statutory provision jurisdiction is denied to justices of the peace “in actions on contracts for real estate.” (Gen. Stat. 1901, §5235.)

The court below dismissed the case because in its judgment the bill of particulars disclosed that it came within the class of actions over which a justice of the peace was prohibited from taking cognizance. If the action was one “on a contract for real estate” the court below was right. If not, its ruling must be reversed. A reading of the bill of particulars, epitomized in the statement, will show that the contract for the purchase of the real estate was at an end before Fry brought his action in the city court. It was terminated for several reasons, principally on account of the failure of plaintiff below to borrow $600 or $700 by mortgage on the property, which was a condition precedent to a purchase of the real estate under the contract. -While plaintiff below was under the necessity of proving the contract, to make out a cause of action in his favor, yet the action was not founded thereon, but was collateral and incidental to it.

It has been held in an action of forcible entry and detainer, which is possessory merely, that the title to. real estate is not involved, although proof of title may. be incidentally offered in support of the claim of pos-, session. (McClain v. Jones, 60 Kan. 639, 57 Pac. 500.) Such actions often require that the plaintiff introduce a complete chain of title for the purpose of showing a wrongful possession by the defendant. Proof of this kind and the judgment in such cases do not establish a link in the chain of title. (Armour v. Howe, 62 Kan. 587, 64 Pac. 42.)

In Duff v. Morrison, 44 Kan. 562, 24 Pac. 1105, real estate was sold under a contract, and in it the grantor. agreed to pay the costs of transferring the title, consisting of an abstract and recording fees. In a suit against him, brought by the grantee to recover such costs, it was held that a justice of the peace had jurisdiction of the action. The court commented on the fact that a contract for the purchase and sale of real estate was connected with the cause of action, but that everything relating to the purchase and sale had been completed except payment of the costs. So, in this case, nothing remained to be done after Ery failed to obtain a loan on the property except the repayment to him of the $300 by defendants in error. Plaintiff below in this action sought neither to rescind the contract nor to enforce it. By its express terms, its validity and existence depended on Pry’s obtaining the loan above mentioned.

The following cases sustain the right of a justice of the peace to take jurisdiction in such actions : Schroeder v. Wittram, 66 Cal. 636, 6 Pac. 737; Mushrush v. Devereaux, 20 Neb. 49, 28 N. W. 847; Campbell v. McClure, 45 id. 608; 63 N. W. 920; Lorius v. Abbott, 49 id. 214, 68 N. W. 486; Benton v. Marshall, 47 Ark. 241, 1 S. W. 201; Newell et al. v. Long-Bell Lumber Co., 78 Pac. (Okla.) 104.

The judgment of the district court is reversed, with directions to set aside the order of dismissal and proceed with the trial of the cause.

All the Justices concurring.