| W. Va. | Apr 9, 1912
Plaintiff in error acquired two judgments against the defendant in error in a justice’s court for the respective amounts of two negotiable notes, executed by the former to the latter for purchase money of standing timber and subsequently paid by him to third parties, bona fide holders thereof without notice, only a day or two after maturity, one having been made payable sixty days after date and the other nine months after date. The judgment for the money paid on account of the first one was recovered before the second became due or was paid. These re
Two grounds of objection to the filing of the plea or answer are urged, (1) it came too late, and (2) it fails to show a question of title.
Jurisdiction in justices to try cases in which title to land is involved is not wholly denied or withheld. It is only qualified and the effect of judgments of justices on titles limited. Section 10 of chapter 50 says a justice shall not have jurisdiction of any suit in which the title to real estate is sought to be recovered, or is drawn in question, except as in the chapter otherwise provided, and declares judgments of justices in actions for trespass or damages to real property or in cases of unlawful detainer shall not bar the title of any party or remedy therefor. Clause XII. of section 50 of that chapter gives the justice jurisdiction of such cases and precludes the defendant from disputing the title of the plaintiff to the premises in question, on his failure to file such an answer as is therein prescribed. This confers no jurisdiction to try questions of title.' It only compels a defendant, having the right to a trial of such a question, to elect
As to whether the defendant’s election must be made once for all in the justice’s court, we have no decision in this state; but it seems to have been so held elsewhere. Lauchner v. Rex, 20 Pa. St. 464, seems to say the objection cannot be made, nor the question of title tried, in the appellate court. The later New York cases hold the action cannot be abated or dismissed on an objection of title in the appellate court, but that the question of title may there be raised and determined, though not set up in the trial before the justice. Gould v. Patterson, 63 Hun. 575; Gould v. Patterson, 87 Hun 533" court="N.Y. Sup. Ct." date_filed="1895-06-21" href="https://app.midpage.ai/document/gould-v-patterson-5508788?utm_source=webapp" opinion_id="5508788">87 Hun. 533; Gould v. Patterson, 34 N.Y.S. 289" court="N.Y. Sup. Ct." date_filed="1895-06-21" href="https://app.midpage.ai/document/gould-v-patterson-5508788?utm_source=webapp" opinion_id="5508788">34 N. Y. Supp. 289. To the same effect is Douglass v. Easter, 32 Kan. 496" court="Kan." date_filed="1884-07-15" href="https://app.midpage.ai/document/douglass-v-easter-7886367?utm_source=webapp" opinion_id="7886367">32 Kan. 496. The older New York cases agree with the Pennsylvania case, saying the election must be made in the justice’s court once for all, and failure there to elect bars the issue of title in the appellate court.
If the appeal broadens the case, allowing questions of title to be tried in the appellate court, of course, the answer of title comes too late to prevent the jurisdiction of that court. To say the jurisdiction of a court may be defeated, or it may be precluded from trying a case, by showing it has power to try it, would be a contradiction in terms and logic. If the appeal does not broaden the case, the allowance of such an answer to defeat jurisdiction would also run into contradiction and absurdity. On failure to file it before the justice, his jurisdiction is expressly declared and fixed by the statute, and the issue of title barred. The consequence of such failure is, by legislative declaration, that “the defendant shall not be permitted, in his
As setting up a defense of title, it could properly have been filed, provided the appeal broadened the case and conferred upon the appellate court jurisdiction to try the question of title. This, too, would conflict with the terms of the statute, saying the defendant shall not be permitted, in. his defense, to dispute the title of the plaintiff to the premises in question. That this inhibition extends only to his defense in the justice’s court is not sustained by the legislative terms, nor in accord with their letter, and they are comprehensive and positive, obviously in-, tended to fix the nature of the controversy and define its limits. And this harmonizes with the general legislative scheme, plainly inhibiting the starting of a title issue in a justice’s court. That the circuit courts to which appeals are taken from justices are courts of general jurisdiction, clothed with power to hear and determine questions of title, signifies nothing. The mode of calling their jurisdiction into activity is carefully prescribed by common and statutory law, and does not include entry for such purpose by an appeal from the judgment of a justice, except in cases falling within the jurisdiction of justices, and, from these, all issues of title are carefully excluded, except in certain cases, and there the judgment on such a question is ex
■ The statutes governing'the practice in Kansas and Hew York differ from ours. In the former state, cases in which questions of title arise are certified by the justice, under express statutory authority, to the appellate court for trial. The Hew York statute now provides that the proceedings in the appellate court shall be the “same as if the action had commenced in the appellate court,” except as otherwise provided.
As there were 'two separate and distinct causes of action, when these proceedings were begun before the justice, there was no splitting of a single cause for two actions. The action
The judgment of dismissal will be reversed, the objection to the answer of title sustained, said answer stricken out and the cases remanded for trial.
Reversed and Remanded.