53 F. 562 | U.S. Circuit Court for the District of Washington | 1892
Tire plaintiff is the owner of one acre of land situated in the city of Tacoma, and this action is to recover possession of a part of said acre, which the city has without legal authority taken possession of in the extension of one of the streets of the city. The Tacoma Railway & Motor Company is operating a street railway in said street. Said defendants have answered, denying the plaintiff’s title, and denying the allegations of diverse citizenship and value, upon which the right of the plaintiff to sue in this court depends, and also set* ing forth certain affirmative defenses. By a written stipulation a jury was waived, and the case has "been argued and submitted to the court upon the pleadings and evidence. There is no lack of evidence^ nor conflict, as to the facts necessary to establish the plaintiff’s title, nor as to the diverse citizenship of the parties; and to sustain the affirmative defenses pleaded by evidence the defendants have wholly failed.
The code of this state governing procedure in civil actions requires that the plaintiff’s complaint shall contain a plain and concise statement of the facts constituting the cause of action, and allows the defendant to demur to the complaint if it appears upon the face thereof that the court in which an action is brought has no jurisdiction of the'parties or of ihe subject-matter of the action. If, in fact, the court is without jurisdiction, but the defect does not affirmatively appear on the face of the complaint, such defect may be pleaded in the answer. A defendant may, in an answer, traverse the complaint by a general denial, or by a specific denial of the particular allegations which he wishes to controvert, and also set forth as many affirmative defenses as lie may have. Section 914, Rev. St., in effect, makes these provisions of the Code operate as rules of practice in this court in actions at law, and dispenses with the necessity for a plea in abatement before answering to the merits when the jurisdiction of the court is contested. Under this system of practice, the allegation in a complaint as to the value of the property in controversy is material, and a denial of it in Ihe answer raises an issue. Hence, to sustain the jurisdiction and support a judgment in favor of a plaintiff, this court must, in a common-law action tried without; a jury, in which there is such an issue, make a special finding that the value of the property in controversy exceeds §2,000. Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. Rep. 781. The decision of the supreme court in the case just cited was rendered after the decision of the circuit court of appeals for this circuit in Bank v. Hamor, 7 U. S. App. 69, 1 C. C. A. 153, and 19 Fed. Rep. 45, and, in so far as the two decisions are inconsistent with each other, the former must be deferred to, being a declaration of the law by the highest authority. According to my understanding of the decision in Roberts v. Lewis, rule 7 of this court, which requires matter in abatement to be pleaded separately before answering to the merits, is not applicable to actions at common law.
One of the points in the argument of counsel for the railway company is that only the land actually necessary for its track and the posts which support its electric wires should be taken into account in the estimate of value for the purpose of determining the jurisdiction as to said defendant. But the plaintiff has not subdivided the premises, and the law authorizes her to join as defendants all parties actually united in withholding possession from her. The railway company has not disclaimed as to any part of the demanded premises, but defends for the whole. The pleadings must show what is in controversy, and in this case do show that all the ground within the street is in controversy; and from the evidence I find that the value thereof is above the amount fixed as the limit of jurisdiction in this court. Judgment for plaintiff, with nominal damages and costs.